Skip to main content

Cross-posted from Real Economics.

Two attorneys involved in defending Occupy Wall Street make a very interesting argument that the notorious Citizens United decision does NOT rest on the concept of corporate person-hood, and therefore the effort to get a Constitutional amendment ending corporate person-hood is a waste of time and resources.

While I disagree with their opposition to a movement to declare corporations “not human” (or, even better, “inhumane”), the two attorneys, Rob Hager and James Marc Leas, do force us to find firmer ground on which to combat the pervasive and perverse influence of money in politics. I think that ground can be found by returning to the ideas of the American Revolution concerning the best form of government being a republic, and identifying the money in politics as being the result of new oligarchies having come into being – remembering that oligarchies are always and everywhere hostile and inimical to a republican form of government.  

This issue of a republican form of government will come up more and more frequently, as the one percenters move to impose increasingly dictatorial political restraints in their effort to control the or even avert the social explosion being brewed by their continued looting of the economy.  Recall that in early December 2011, Representative John Conyers requested U.S. Attorney General Eric Holder to determine whether Michigan's new state law that could place Detroit and four other cities in Michigan under the control of an unelected emergency manager violated violates Article 4, Section 4 of the U.S. Constitution guaranteeing to the states a republican form of government.

Hager and Leas argue that

The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections….

The Supreme Court did not base its pro-corporate First Amendment decisions on supposed "constitutional rights" of corporations. Instead, it applied novel interpretations of the First Amendment that were independent of the identity of the speaker to open the floodgates of corporate money in elections, thereby turning elections into the high-return investment vehicles they are today.

The novel interpretations of the First Amendment were initiated in two Supreme Court cases decided decades before Citizens United. In its 1976 Buckley v Valeodecision, the Supreme Court equated spending money in politics with First Amendment protected speech and overturned federal limits on expenditures in elections as violating the First Amendment.

Its 1978 decision in First National Bank of Boston v. Bellotti was the first case in which the Supreme Court overturned a law that restricted corporate money in politics.  

Now, if you have gotten over your shock at the idea that the problem with Citizens United is really NOT corporate person-hood, the passage above, citing two Supreme Court decisions from over thirty years ago, serves the extremely useful purpose of forcing us to deal with the fact that we are confronting a decades-long process of devolution in which our political system has been captured by special interests generally identified with the corporate form of economic organization. What is important to understand here is that corporations are merely a symptom of the problem, not the problem itself.

To see my point, consider this: If we do manage to end corporate personhood, then what shall we do about the problem of Peter Peterson or David Koch or Charles Koch giving tens of millions of dollars to their preferred candidates or political organizations as individual citizens? What of Michael Bloomberg or Rahm Emanuel, as an individual citizens, giving their own political campaigns millions or billions of dollars?  These people think and act like oligarchs, and as such, they are by their nature enemies of our republican form of government.  Another conundrum proving the point: What if these oligarchs develop some other formal organization, and call it something else besides a “corporation”? – intending to circumvent the law the way Dubya Bush did by refusing to use the term “prisoners of war” and using the term “enemy combatants” instead?

Only by insisting on a return to the understanding of the nature of a republic, and the dangers posed by an oligarchy, do we truly solve the problem.

So, you ask, just what is a republic? There are two books I turned to last year to answer that question. Both are classics from the late 1960s: Bernard Bailyn’s The Ideological Origins of the American Revolution, and Gordon Wood’s The Creation of the American Republic, 1776-1787.  I think John F. Kasson presents an excellent summary of these two tomes in his own 1999 book, Civilizing the Machine: Technology and Republican Values in America, 1776-1900. In fact, it was the footnote to this passage that pointed me to Bailyn and Wood:

The roots of republican ideology extended deep into English politics and the English libertarian tradition, Puritanism, Enlightenment rationalism, ancient history and philosophy, and common law – and those roots were strengthened rather than severed by being transplanted into the fertile soil of America. The notion of republicanism began with a conception of the relationships among power, liberty, and virtue. The balance among these elements, Americans’ reading and experience taught them, remained delicate and uneasy at best. Power, as they conceived it, whether wielded by an executive or by the people, was essentially aggressive, forever in danger of menacing its natural prey, liberty or right. To safeguard the boundaries between the two stood the fundamental principles and protections, the “constitution” of government. Yet this entire equilibrium depended upon the strictest rectitude both within government and among the people at large. To the eighteenth century mind republicanism denoted a political and moral condition of rare purity, one that had never been sustained by any major nation. It demanded extraordinary social restraint, what the age called “public virtue,” by which each individual would repress his personal desires for the greater good of the whole. Public virtue, in turn, flowed from men’s private virtues, so that each individual vice represented a potential threat to the republican order. Republicanism, like Puritanism before it, preached the importance of social service, industry, frugality, and restraint. Their opposing vices—selfishness, idleness, luxury, and licentiousness—were inimical to the public good, and if left unchecked, would lead to disorder, corruption, and ultimately tyranny. The foundation of a just republic consisted of a virtuous and harmonious society, whose members were bound together by mutual responsibility.

What the Roberts Court does, in its Citizens United and other pro-corporatist decisions, is remove any burden of public virtue from those people most driven by selfishness and love of luxury. In fact, the Roberts 5 coheres with the typical wrong-wing view that in a market economy, the rich become rich by their industry and frugality – ignoring the historical evidence that many of the wealthy today are wealthy by accident of birth, or by the depredations of financial capitalism, rather than the socially useful functions of industrial capitalism. Reading Roberts’ majority decision, its invocation of “the market” and fawning concern for corporations is quite jarring when compared to many other famous decisions rendered before the Roberts Court arrived on the scene to foul our republican heritage. From pages 38-39 of Roberts’ Citizens United ruling:  

Austin interferes with the “open marketplace” of ideas protected by the First Amendment… (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of THOMAS, J.). It permits the Government to ban the political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corporations filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million businesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees)… (more than 75% of corporations whose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year)…. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.”

Roberts’ enlisting of James Madison is particularly galling, because it is precisely in The Federalist No. 10, that Madison warns that factions most often arise based on economic interests. In preparation for the Constitutional Convention, Madison made notes of the defects of the Articles of Confederation. Vices of the Political System of the United States These short notes amplify and clarify Madison’s thinking on the formation of a new government. Here is a section dealing with the problem of emerging oligarchies:

6. Want of Guaranty to the States of their Constitutions & Laws against Internal Violence.

According to republican theory, right and power being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may in an appeal to force, be an overmatch for the majority: 1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds."

I added emphasis to show that one scenario Madison feared was that accumulated wealth would achieve so much political power that republican rule would be subverted or obstructed. It was a historical cycle the Madison and other Founders had identified from their close study of the rise and fall of other republics, especially Athens and Rome: political power in a republic begins to be amassed by an oligarchy that has the wealth to buy and political favor; this oligarchy eventually subverts and corrupts the republic, causing a dissolution of order and rise in chaos; leading the imposition of tyranny to restore order. In fact, a key tenet of political belief at the beginning of our republic was that a general equality in income and wealth was essential to the maintenance of republican government. In October 1787, Noah Webster (who two decades later would publish his famous dictionary) issued a pamphlet entitled, Examination of the Leading Principles of the Federal Constitution, which was probably the second most influential tract, after the Federalist Papers, arguing in favor of ratifying the Constitution.

Wherever we cast our eyes, we see this truth, that property is the basis of power; and this, being established as a cardinal point, directs us to the means of preserving our freedom. Make laws, irrevocable laws in every state, destroying and barring entailments; leave real estates to revolve from hand to hand, as time and accident may direct; and no family influence can be acquired and established for a series of generations--no man can obtain dominion over a large territory--the laborious and saving, who are generally the best citizens, will possess each his share of property and power, and thus the balance of wealth and power will continue where it is, in the body of the people.

A general and tolerably equal distribution of landed property is the whole basis of national freedom: The system of the great Montesquieu will ever be erroneous, till the words property or lands in fee simple are substituted for virtue, throughout his Spirit of Laws.

Virtue, patriotism, or love of country, never was and never will be, till mens' natures are changed, a fixed, permanent principle and support of government: An equality of property, with a necessity of alienation, constantly operating to destroy combinations of powerful families, is the very soul of a republic--While this continues, the people will inevitably possess both power and freedom; when this is lost, power departs, liberty expires, and a commonwealth will inevitably assume some other form.

The Citizen's United decision overturns Madison's conception of, and concern about, factions. It entirely ignores the problem Madison took note of in his preparations for the Constitutional Convention: a relatively small faction of the rich and wealthy can destroy the republic by imposing their will on the majority through their purchase of political power and favor.

Hager and Leas argue that the Roberts 5 did not rely on or even invoke the concept of corporate personhood. Neither does Justice Stevens in his booming dissent.  On pages 34 through 41, Justice Stevens reviews the historical record as to how corporations were viewed by the Founders, making quite clear that corporations were never considered on the same level as individual human citizens.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

Stevens gives us a parade of citations and quotes showing that there is a far-reaching, important, and vital American tradition of this inherently suspicious view of corporations, including the great classic quote  from Chief Justice John Marshall’s 1819 decision in Trustees of Dartmouth College v. Woodward: , “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it” Stevens proceeds to elaborate this traditional view of corporations:

Those few corporations that existed at the founding were authorized by grant of a special legislative charter.  Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation’s powers and purposes and “authoritatively fixed the scope and content of corporate organization,” including “the internal structure of the corporation.” J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970, pp. 15–16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities,  “designed to serve a social function for the state.” Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was “assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.”R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982). The individualized charter mode of incorporation reflected the “cloud of disfavor under which corporations labored” in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee, 288 U. S. 517, 548–549 (1933) (Brandeis, J., dissenting) (discussing fears of the “evils” of business corporations); L. Friedman, A History of American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men” ). Thomas Jefferson famously fretted that corporations would subvert the Republic.

….The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little  trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. 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.).” (Emphasis mine.)

That the Roberts 5 were consciously and seditiously using their positions to rewrite the laws to further facilitate the consolidation of power by corporatist oligarchs, is seen by the highly irregular and unusual method by which the Roberts 5 brought the Citizens United case before them for decision. Justice Stevens’ scorn and derision is literally palpable on page 4 of his dissent:

Our colleagues’ suggestion that “we are asked to reconsider Austin  and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.

Hager and Leas pointed to an August 10, 2009 opinion piece by Adam Cohen in the New York Times which ably summarized the shocking machinations of the Court’s corporatists in bringing this case before them:  

The court has gone to extraordinary lengths to hear the case…. It took a case, Citizens United v. Federal Election Commission, in which the ban on corporate contributions was not a central issue; told the parties to prepare legal briefs on the ban’s constitutionality; and rushed to put oral arguments on the calendar in September before the new term even starts….
If the conservative justices strike down the ban, they would be doing many things they disavow. They would be substituting their own views for the will of the people, expressed through Congress. They would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court’s own precedents.

Constitutional law scholar Laurence H. Tribe, who argued and lost Bush v. Gore wrote that the Citizens United ruling by the Roberts 5

marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent…

That the Roberts 5 are consciously and seditiously acting as one percenters in service to the narrow interests of one percenters is further indicated by the decisions handed down since Citizens United. Hager and Leas, again:

The relatively ignored 2011 Arizona Free Enterprise v. Bennettdecision, which overturned an Arizona public campaign funding law adopted by referendum, is probably more important than Citizens United. This is because it struck down a way of using public funding to effectively compete with private interest money in elections. The Roberts 5 thus showedthey would brook no workarounds of their decisions that have the effect of mandating corrupt elections.

(For more on Arizona Free Enterprise v. Bennett Seneca Doane's reclisted diary here, and this devastating and comprehensive analysis by a DailyKos front pager.)

Hager and Leas write that

The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.

….First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.

Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.

By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.

The typical conservative view of the purpose of a corporation is to “maximize shareholder value” and “to make a profit.” Yet here we have the conservatives on the Supreme Court amending that view to include “being a vehicle for the expression of First Amendment rights.” Uniting these two views puts the Citizens United ruling in a stunningly utilitarian light that shows once again how the Roberts Court has perverted the original intent of the Constitution. The astounding return on investment of $220 for every dollar spent on lobbying is possible because it is economic rent at work in its worst manifestations.   No actual investment in the real economy has ever or will ever give such a stupendous rate of return.

Clearly, a corporation thus unleashed within the political process is the purest concentration of economic faction Madison warned about in Federalist Paper Number 10. So, once again, we are brought back to the Founders’ intent of erecting a system of checks and balances designed to preserve and protect a republican form of government, and the inevitable threat concentrated economic power poses to the Founders’ design.

Does this mean that I am opposed to an amendment explicitly declaring that corporations are not people and there do not have inalienable rights? No. But I do not see such an amendment, and the fight for it, as the ends itself. Rather, I see it as the means to an end – an increasingly popular vehicle by which our fellow citizens will have to relearn the principles of republican government, and be forced to recognize that the American conservative movement and the current incarnation of the Republican Party are wholly owned tools of the new oligarchies of banksters and corporatists, and are thus by their very nature baneful agents of sedition and treason working actively to destroy republican government. And that this sedition and treason is nothing but a repeat of the historical cycle identified by the Founders, of how a republic succumbs to the powers of concentrated wealth, degenerates into an oligarchy, and slouches toward despotism.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  five of the most corrupt Supreme Court Injustices (6+ / 0-)

    in American history (Scalia, Thomas, Alito, Kennedy & Roberts) have unleashed this abomination of a decision/blatant in-kind contribution to the Republican Party on our country. They should all be tried for treason, corrupt and...perhaps even insanity.

  •  I've Made This Point From the Outset Because (6+ / 0-)

    the 1st Amendment speech right is clearly not stated as a right "of the people." It's speech that can't be infringed on, there's no mention of a speaker.

    Arms freedom is a right of the people to bear arms. There's a freedom of the people from unreasonable search and seizure. But speech seems to be the entity possessing the freedom in the 1st Amendment.

    I've got no legal training but I can read the wording. Nothing in the parts of the decision I saw, like the 1st Amendment, seemed to me to depend on the nature of the speaker.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Jan 21, 2012 at 12:18:40 PM PST

    •  Yes but (1+ / 0-)
      Recommended by:

      by the same strict literal reading, the 1st only protects against abridgement by the United States Congress.  It therefore provides no basis for overturning the Montana law.

      The 14th amendment, which allows for applying the bill of rights to the states, applies only to people and not corporations.  Thus neither the 1st amendment nor the 14th amendment give the Supreme Court any fig leaf for overturning the Montana supreme court decision.

      I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

      by happymisanthropy on Sat Jan 21, 2012 at 01:09:12 PM PST

      [ Parent ]

      •  happy - read the diary (0+ / 0-)

        CU wasn't about corporations it was about freedom for speakers, regardless of their source. In CU a corporation is treated the same as a club or a union.

        "let's talk about that"

        by VClib on Sat Jan 21, 2012 at 01:17:17 PM PST

        [ Parent ]

      •  The 14th applies to everyone. (0+ / 0-)
        The 14th amendment, which allows for applying the bill of rights to the states, applies only to people and not corporations.  

        Which is irrelevant.  By denying free speech to a corporation, you necessarily deny it all people who are members of that corporation.

        •  really? (1+ / 0-)
          Recommended by:
          Josiah Bartlett

          so if a corporation goes out of business, all the members of that corporation are necessarily denied the right to life?

          A corporation, by definition, has NO FREEDOMS except those given to it by the government that issues it a charter.  If the government declines to give it the same freedoms of an actual human person, it hasn't lost anything.

          I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

          by happymisanthropy on Sat Jan 21, 2012 at 05:18:58 PM PST

          [ Parent ]

        •  More (0+ / 0-)

          humans are responsible for their own actions.  If a government takes upon itself to create corporations, it assumes the responsibility for ensuring that those corporations do not behave destructively towards human persons. IT CANNOT SHIRK THAT RESPONSIBILITY UNDER ANY EXCUSE WHATSOEVER.

          Read the sig.

          I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

          by happymisanthropy on Sat Jan 21, 2012 at 05:29:25 PM PST

          [ Parent ]

        •  Patently, categorically, unambiguously FALSE (1+ / 0-)
          Recommended by:
          Josiah Bartlett

          If some people were fool enough to surrender their free-speech rights as a pre-condition to join a corporation, that's their right - and quite legal and enforceable to give it up in a private contract.  And ONLY in such a case could an unsupported assertion like that one stand on its own.

          Your red-herring is ridiculous.


          by chmood on Sat Jan 21, 2012 at 07:10:38 PM PST

          [ Parent ]

    •  Yeah, there have been a couple of us (3+ / 0-)
      Recommended by:
      VClib, histOries Marko, MGross

      who keep trying to argue that the whole 'corporate personhood' issue doesn't address or solve the issue in Citizens United, but for whatever reason that's taken off as the meme, and once it's taken off, it's hard to rein in.  Adam B's been diligent about this, too.  If people are 'shocked' by this, then... Well, it's been said enough times.

      Meanwhile, to the diarist:

      1. It's not sedition, and nothing like sedition.
      2. Haeger and Leas are wrong that this is "a political question"; whether Congress has overstepped its 1st Amendment restrictions is a legal question;
      3. The court did not "overrule a fully supported legislative finding" - note that Haeger and Leas don't cite or link any alleged findings - and in fact argued that if a fully supported legislative finding came around, Congress could find ways to legislate (within their 1st Amendment responsibilities) toward a fix.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sat Jan 21, 2012 at 01:23:37 PM PST

      [ Parent ]

    •  Yes, the 1st is worded that way, but that is (1+ / 0-)
      Recommended by:

      only a small part of the discussion. Those limitations on Congressional power are not abstract and they can only be vindicated by parties that the court recognizes as having the right to vindicate them but also who have been injured. That is why the court gets into the issue of identity, natural persons versus associations such as corporations. The key holding of the case was reversing a prior case that had held that Congress could regulate differently depending on the identity of the parties. It would not have gotten to that question without first having accepted that corporations and other associations are persons for purposes of the 1st.

      Further, affiant sayeth not.

      by Gary Norton on Sat Jan 21, 2012 at 02:16:47 PM PST

      [ Parent ]

    •  Ah. There's no speaker who can't say (1+ / 0-)
      Recommended by:

      or pen words. "Speaker" contains within it "person." The idea that people can get together and, through signing a paper, create an additional person would be insanity, I'd think, to the Founders.

      Bring Exxon or Bank of America in the room and see if you can get them to say a word. Even if you spit in their faces, which you can't, because they don't have any.

      Today, if you exist... that's already suspicious.

      by Jim P on Sat Jan 21, 2012 at 03:15:59 PM PST

      [ Parent ]

  •  Argument? (5+ / 0-)
    Recommended by:
    coffeetalk, VClib, Yastreblyansky, pico, MGross
    Two attorneys involved in defending Occupy Wall Street make a very interesting argument that the notorious Citizens United decision does NOT rest on the concept of corporate person-hood

    That's a simple fact, not an argument.  The majority opinion flat out says that its holding doesn't rely on the notion of corporate personhood.
    •  wrong (1+ / 0-)
      Recommended by:
      Gary Norton

      If you have no freedom, it is logically impossible for Congress to abridge your freedom.  

      If the Supremes assume that corporations are people with rights, they don't need to prove that corporations are people with rights.  They simply assume it to be true.

      You are assuming that corporations are people before you even begin the discussion.

      I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

      by happymisanthropy on Sat Jan 21, 2012 at 01:15:36 PM PST

      [ Parent ]

  •  NB Brooks - It's about time (4+ / 0-)
    Recommended by:
    histOries Marko, oldpunk, MGross, Creosote

    There have been a small group here at DKOS who have been trying to educate our fellow bloggers that Citizens United had nothing whatsoever to do with corporate personhood, and have been derided for our efforts. The problem is that we have had hundreds of diaries or comments that proclaimed that CU was about corporate personhood and that has led to an echo chamber of misinformation read by this community. The diaries written about CU, with some notable exceptions like Adam B and a few others, included profound errors regarding the issues in the case and the majority opinion.

    Thank you for publishing this diary. You don't have to like the decision, or its impact on the political process, to accept the actual facts in the case. In addition, progressives seem to always forget that the AFL-CIO and the ACLU supported the majority in this case. Also, some notable liberal legal experts, who don't like the impact, thought that the majority got it right on the law.

    "let's talk about that"

    by VClib on Sat Jan 21, 2012 at 01:01:24 PM PST

    •  I just see this as straining at gnats. (0+ / 0-)

      why make a big deal about the difference between

      "they're people"


      "they may or may not be people, but they have the same 1st amendment protection as people, including incorporation under the 14th amendment even though it specifically says it only applies to people, so they must be people even though we're not saying they're people."

      I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

      by happymisanthropy on Sat Jan 21, 2012 at 01:53:29 PM PST

      [ Parent ]

  •  CU did two things. It reaffirmed (5+ / 0-)

    Buckley v Vallejo's core ruling that money given or spent in politics is speech for purposes of the 1st Amendment. Second, it held that Congress may not distinguish between "identity" of speakers, whether individuals or associations such as corporations, and in so doing, reversed Austin v Michigan Chamber of Commerce.

    If the Court had not done both things CU would not have been decided as it was. Both aspects of the case are potential avenues for constitutional amendment. If the Constitution were amended to say money is not speech for purposes of the 1st, then Congress could regulate all political money, corporate or individual.

    If the Constitution were amend to say only natural persons are granted rights under the Constitution, and that the limitations on Congressional powers in the Constitution, ie., the 1st Amendment, only apply insofar as the laws are directed at natural persons, then Congress could regulate the political activities and expenditures of all associations, including corporation.

    The important point is that both elements are critical to the decision. If Austin were not reversed, then Congress could continue to regulate persons differently depending on their identity, ie., natural persons or associations such as corporation. But you would not even get to Austin, if you were not treating associations as persons because Constitutional rights are not abstract. They can only be vindicated by parties who have standing. The entire discussion presupposes that associations have standing and are amenable to 1st Amendment protections. That also was the premise of Austin, but it held that Congress could distinguish between classes of persons. CU says they can't.

    The opinion is really straightforward but it is easy to get bogged down when reading the full text. The syllabus gets ri of the surplus sage and is easier to follow. Here is the relevant part,

    1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin . Pp. 5–20.

              (a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not “publicly distributed” under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of R oberts , C. J.), determining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id. , at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12.

              (b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment ’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here because the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation , 513 U. S. 374 ; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.

         2.  Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.

              (a) Although the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20–25.

              (b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , and extended this protection to the context of political speech, see, e.g., NAACP v. Button , 371 U. S. 415 . Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U. S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, because it “fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id. , at 47–48. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley ’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)’s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth … that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.

              (c) This Court is confronted with conflicting lines of precedent: a pre- Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post- Austin line permitting them. Neither Austin ’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.

                   (1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin ’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin ’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley , supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n , 554 U. S. _, _. Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment , and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech. Austin interferes with the “open marketplace” of ideas protected by the First Amendment . New York State Bd. of Elections v. Lopez Torres , 552 U. S. 196 . Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. 32–40.

                   (2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co. , 556 U. S. _, distinguished. Pp. 40–45.

                   (3) The Government’s asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

                        (4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.

              (d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned—counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47–50.

    Further, affiant sayeth not.

    by Gary Norton on Sat Jan 21, 2012 at 02:01:30 PM PST

  •  A monkey is captured by putting a banana in a box (0+ / 0-)

    where the monkey can grab it. The monkey will not let go of the banana as it is captured. For the professional left the amendment is a lot like the banana. They will not let go even after being shown that it is fatally flawed.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site