The Suppression of The Little Guy

Thursday, January 21, 2010

The Supreme Court of the United States today ruled to ease restrictions on corporate campaign donations. This statement from CNN reflects my sentiments:

The Supreme Court has given big business, unions and nonprofits more power to spend freely in federal elections, a major turnaround that threatens a century of government efforts to regulate the power of corporations to bankroll American politics. [emphasis added]
.Says Obama:
The Supreme Court has given a green light to a new stampede of special interest money in our politics...It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.
This, again, reflects my sentiment well. Of course, I am not surprised Obama is not a giant fan of this decision; he raised gobs on money online a couple bucks at a time. But that was when raising gobs of money online could be competitive with limitations set on corporate giving. Now? There's no way you or I can compete. In my mind, the playing field was level when a Wall Street Exec or Random Mega Rich Guy had the same giving limits as me. But now? This Fall will make 2008 look like a school bake sale by comparison.

From supporters of the decision:
The Supreme Court's decision today is a victory for the First Amendment and the right of all Americans to participate in the political process," said Theodore Olson, who successfully argued the case for the conservative Citizens United
I get that everyone is protected by the First Amendment, but this statement is tied to a much older decision whereby "corporations" are "people." I'm not a fan of that train of thought at all. Where this sentiment really bothers me is in Kennedy's majority opinion:
When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," Justice Anthony Kennedy wrote for the majority. "The First Amendment confirms the freedom to think for ourselves."
Corporations can have PACs, and this is unaffected by this decision. A PAC is how they exercise their opinions, as corporations, about candidates. What a corporation has that I do not have, as a real person, not a "corporate" person, is enough money, unlimited in some cases, to really really really make my voice heard.

The problem extends itself. How many, say, progressive corporations and labor unions are there? And how many conservative corporations are there? And how many more of one is there than the other, and what are their combined voices, and more importantly, their combined media-buying power, capable of in terms of influence above and beyond the other?

And why the fuck should a corporation, who is not a person, have that kind of say anyway?

Let's take this out of the realm of "this is bad for Democrats/Progressives." This is simply a bad ruling that yet again places corporate interests above and beyond the ability of the average citizen to find equal voice in the political arena.

The issue hinged on whether corporations' ability to pour money into election campaigns could be strictly regulated, or whether corporations have free-speech rights to spend their cash to influence elections, just as individual donors do. In this ruling, the justices also nullified earlier rulings upholding the core of a 6-year-old federal law aimed at curbing corporate campaign spending. Under current law, there are severe restrictions on campaign ads used by corporations for federal elections. They generally must be issue-focused -- talking about abortion or taxes, for instance -- and not expressly supporting or opposing a candidate. Those limits have now been generally removed.
I think even giving corporations the ability to weigh-in on issues was bad enough, but at least their power to silence me was limited to a certain extent. Unless I really really cared about the issue ad, I'd skip it.

the bottom line for me: What this does is force political candidates to bow further to corporate interests so that they can reap the benefits of even more money.

23 comments:

Andy 3:58 PM  

I agree with Noah (to no one's surprise). I expect that this will generate lively discussion here, though. I look forward to hearing the other side.

Smitty 4:01 PM  

I look forward to hearing the other side.

I may shoot the other side. Another fucking win for Wall Street.

Bob 4:55 PM  

I am not sure anyone here will defend this. I won't.

Corps. are not people. Period.


Now Fox can run all its ads for free on all its networks for R's.

Smitty 5:00 PM  

Now Fox can run all its ads for free on all its networks for R's.

My head exploded.

Bob 6:07 PM  

Does the decison allow for limits? It doesn't allow soft money.

steves 7:54 PM  

I will reluctantly say that this was the right decision. While I may not be completely pleased with the results, it is what the Constitution demands.

...sneaking out the back door...

steves 7:56 PM  

If people are interested, I can post a more detailed response with my reasoning. In the mean time, check out Volokh for some good write ups.

Mr Furious 8:53 PM  

I'd like to hear it, steves. Sincerely.

I think it's absolute horseshit, but if you've got a case to make, I'll listen.

Smitty 9:19 PM  

Well, Steve, I will reluctantly say that I will reluctantly read an consider your reasoning. Like Furious, I think it is complete and total crap (along with the 4 dissenting Justices), but you make decent arguments, and I want to hear "the other side" from someone other than that fucking dickface Newt Gingrich. He makes me so angry, he can't tell me that the sky is blue without my wanting to scream at him that he's full of shit.

Proceed.

Monk-in-Training 10:27 PM  

Corporations are not people, and have no soul, and have no individual rights. This is a ghastly decision, and that concept of personhood from a fictional legal construct is the core of it.

In my opinion.

And YES, Smitty, please some one other than former Rep. Gingrich.

Mr Furious 2:30 AM  

When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," Justice Anthony Kennedy wrote for the majority. "The First Amendment confirms the freedom to think for ourselves."

Full stop.

Thought? Think? A corporation cannot think or have a thought. His foundation falls apart right there. A corporation, frankly, cannot speak either. The people that comprise a corporation can do all of those things and thus have rights worthy of protection, but a corporation itself is a piece of paper.

Bob 8:15 AM  

"...Thought? Think? A corporation cannot think or have a thought..."

Yet the INDIVIDUALS still had a right prior to this decision to form a PAC and give their income toward elections. Why the corperate income shoudl be used for this is beyond me.

steves 8:45 AM  

I mentioned reluctant because I have never been a fan of most advertising and have also not been a fan on the notion that money can buy influence. Unfortunately, that has been the reality for a long time.

A more detailed analysis will have to wait until I have more time to thoroughly read the opinion (all 183 pages). I have read some of the analyses from Volokh, the MSM, and the blogoshere. Some has been very good, but much (especially from the MSM) has been almost worthless and devoid of any intelligent arguments. The blogoshere, as usual, is a mixed bag, but Volokh has soom good commantary, which is not surprising, considering their background.

A corporation is not a person, but in some cases it can be made up of a single person or a collection of many persons. I was somewhat puzzled at the dissent of Stevens, in that jurisprudence recognizes the Constitutional rights of corporations like the New York Times when it comes to free speech issues.

From Volokh:

It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are. Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on. In this context, it’s important to emphasize that most media organizations and political activist groups also use the corporate form. As Eugene points out, most liberals accept the idea that organizational form is irrelevant when it comes to media corporations, which were exempt from the restrictions on other corporate speech struck down by the Court today. The Supreme Court (including its most liberal justices) has repeatedly recognized that media corporations have First Amendment rights just as broad as those extended to media owned by individuals. Yet the “corporations aren’t people” argument applies just as readily to media corporations as to others. After all, newspapers, radio stations, and TV stations “are not human beings” and they too “have no consciences, no beliefs, no feelings, no thoughts, no desires.” We readily reject this reasoning in the case of media corporations because we recognize that even though the corporations in question are not people, their owners and employees are. The same point applies to other corporations.

There are various other arguments for treating political speech by people organized as corporations differently from that by people using other organizational forms. I’m not going to try to address them all here. We can discuss them more productively if we first dispense with the weak but popular claim that corporations aren’t entitled to freedom of speech because they aren’t people.


I realy have nothing to ad to this. There are many cases that emphasize the freedom of the press, which is most often a corporation of some sort. Agents of the FBI can't barge in to GM and seize property without a warrant.

steves 8:45 AM  

A summary:

Just a quick summary. The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting). Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech. According to Justice Kennedy, the Court is re-embracing the principle that a speaker’s corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases. It would appear this holding applies equally to unions. While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government’s interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United. The opinion also includes a substantial discussion of stare decisis, and why such considerations counseled overturning prior precedents.

A quick read through some of the comment sections has some analysis that suggest this opinion really won't change that much overall. From the last election, it was pretty clear that the nefarious special interest groups were still able to make their voices heard and found ways to get around the requirements.

I cringe when I hear some politician complaining about special interest groups while those groups funnel millions into the coffers of both parties. Do they really think we are that stupid?

The problem extends itself. How many, say, progressive corporations and labor unions are there? And how many conservative corporations are there? And how many more of one is there than the other, and what are their combined voices, and more importantly, their combined media-buying power, capable of in terms of influence above and beyond the other?

Good questions. I don't really know, but it is clear that these groups tend to give the same amount of money overall to both parties.

And why the fuck should a corporation, who is not a person, have that kind of say anyway?

Why shouldn't people be able to pool their resources and make their infleunce heard? I can't contribute much, but shouldn't I be able to join some kind of advocacy group and gain influence that way?

I just don't see a fair way to regulate this beyond requiring full disclosure. Banning corporation just allows for greater influence in other spheres. One of the Volokh writers talked about Curt Schilling's endorsement having an effect in the Brown election. Why should wealthy people like that have a great effect, but not a corporation?

The last election, from what I could tell, wasn't all that different from previous elections prior to the corporate restrictions, so I don't by the notion that the next election is going to be all that different. Did the special interest groups disappear from the last election? Was their no corporate influence?

Historically speaking, we are better off than we were a hundred years ago when political parties owned most of the newspapers and were blatant about their support for a poltical candidate. We have much more in terms of choices and it is harder for some candiate to take millions in donations and hide this influence. I am not overjoyed with the results of this decision, but I predict it won't really change that much in terms of substance in the next election, and I also think it was probably the right decision in terms of Constitutionality.

steves 9:29 AM  

One thing that concerns me is that I don't want the State deciding who can make political speech and who can't. This has a great deal of potential for abuse. One of the reasons for striking down the prior law was that it was too broad and could be used to stifle a great deal more speech than was being restricted now.

I certainly welcome Congress and the President crafting new laws that will fit within the framework of this case and will be fair across the board.

Smitty 2:14 PM  

I can't and won't argue with Volokh's takedown of the "corporations aren't people" argument. I agree with it; though the corporation itself is a piece of paper (or in this age, a set of ordered electrons), it is made of people.

That said, corporations, even interest groups organized as corporations, are not run by the multitudes they purport to represent.

FedEx has thousands of employees. But the political decisions that FedEx Board members make are sometimes in absolute conflict with what is best for its drivers and packers. In fact, in may cases, they are diametrically opposed.

Even worse then individual corporations are what the Chamber of Commerces can do politically. This gives a Chamber, which has been under fire recently for doing things counter to the interests of some of its own members, a free hand to spend ludicrous amounts of money to influence elections.

To me, the First Amendment is not only about everyone's ability to speak freely, it's also about parity. I cannot possibly equal the voice of a Chamber with an unfettered hand. And again, the fact that more money is on the table than ever before forces legislators (however in their own minds) to make decisions more congruous with business interests. That's where the money is.

Sure, I could "vote for the candidate who is not so tied to that philosophy," but reality is, and for evidence of this look no further than who is Michigan's Speaker and what kinds of legislation hasn't passed a DEMOCRATIC fucking House, those candidates either lose all the time, or cease to exist because the other side, the not-pro-business-all-the-time side, is simply not lucrative.

This decisions also assumes something extremely anti-Democratic (not political democratic, but the classical greek definition of democratic), which is that corporate interests are always aligned with individual interests. See what Newt Gingrich said about it yesterday. And then take a look at supreme court decisions over time removing corporate interests in lieu of protecting the small, insignificant little guy.

steves 3:30 PM  

Smitty, I agree with most of your points. I don't have a problem with corporations being regulated, nor do I believe that they act out of any kind of goodness. We need to keep an eye on them. I still believe that, while problematic in some ways, it is not ok to regulate their speech the way the overturned law did and be Constitutional. According to the decision, the Court (clerks) sifted through 100,000+ pages of evidence on how corporate speech related to elections. They were unable to find the 'effect' that the law was supposed to remedy. In other words, the reason for the law didn't pan out, so the law was unable to overcome the standard of review.

To me, the First Amendment is not only about everyone's ability to speak freely, it's also about parity. I cannot possibly equal the voice of a Chamber with an unfettered hand.

Pragmatically speaking, even without corporations, there are probably millions of people you couldn't equal because you don't have the money to do so. George Soros and Bill Gates will always have a bigger say than you.

Smitty 8:06 PM  

George Soros and Bill Gates will always have more say than you

Actually, no. Bill and George, as individuals, are bound by the same limits on spending per candidate as I am.

Bill and George can organize a bunch of their rich friends and raise a bunch more money, but that's ok too. I can do it too, with my multitude of middle-class minions.

But being able to use the massive coffers of a corporation's treasury hurts.

See, if a corporation wants to donate now, it had to create a PAC, and had to convince its employees to give to that PAC in order to fill its account.

Now? It can skip asking its employees anything and just fill it straight from its own treasury. Sorry man. That's bullshit.

steves 10:54 PM  

Actually, no. Bill and George, as individuals, are bound by the same limits on spending per candidate as I am.

Realistically speaking, these two have way more of an influence on elections and issues (on a national basis) than you do. I am not trying to be a dick, but there is no way you can say that they can't, in various ways, have a huge impact on an election.

I wonder if a law could be passed that required shareholders to approve political ads and contributions. Most employees are not shareholders, so I don't see why they should decide how corporate funds are spent on ads. They don't have any say on other stuff.

My BS, wild-assed prediction for this is that the next election won't be all that different than any of the other elections in my lifetime.

Rickey Henderson 8:05 AM  

This is easily the worst political development in recent memory. How people can justify this as free speech is appalling...

Smitty 10:17 AM  

Realistically speaking, these two have way more of an influence on elections and issues (on a national basis) than you do.

That is true, steves, inasmuch as they have the ability to give more contributions to more people than I can, and they have more friends in the highest income bracket than I do. But they are still limited by the allowable size of those donations.

And I'll say it again: being able to use a corporation's treasury to make these contributions hurts you and I. CEOs and their Boards can now unilaterally decide to make campaign donations to candidates they like for one reason or another. Before, that business had to have a PAC, and its employees could choose to give or not to that PAC. If I hated what my company's PAC funds were being used for, I could choose to not give.

Well now it doesn't matter WTF I think as that employee. They can just write checks, sometimes to candidates counter to my best interests as an employee. Sure, they could write checks to the same people with the PAC, but at least I could choose to keep some of my own paycheck and not give.

steves 11:21 AM  

I understand your point and somewhat agree, which is why I said I was a reluctant supporting of this ruling. There are some aspects of free speech that I an not always comfortable with, but that is the price we pay for living in a free society.

Time will tell what happens, but I seriously doubt that some kind of corporate dystopia is just over the horizon. I also don't thik this will have that much of a noticiable impact on elections. I would suspect that there is a Constitutional way to improve this situation.

One thing I have trouble understanding is how some bloggers are saying this is the worst decision that has ever come out of the Supreme Court. There are several possibilities:

1) They are idiots.
2) They have not read the decision or at least haven't read the holding.
3) They are completely unfamiliar with the history of this country and have never heard of any other Supreme Court decision.
4) All of the above.

While I think this decision is Constitutionally sound and the dissent is wrong, I can understand their reasoning. I have a hard time seeing how this deicsion is the worst, especially when you put it next to Dred Scott (slavery is OK) and Koramatsu (it is OK to imprison US citizens of Japanese ancestry that haven't done anything wrong).

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