A sensible case against Citizens United
Sonny noted earlier that he literally cannot fathom objections to a Supreme Court ruling that strikes down restraints on freedom of speech. I’m no constitutional scholar, but let me try to do some fathoming. The following points are all borrowed directly from Kevin Drum. who comes at this from a liberal Democratic perspective. First,
There’s no question that political speech is at the core of the First Amendment. Restricting commercial speech is one thing, but restricting political speech, no matter who’s doing it, ought to raise much louder alarm bells. On a practical level, there’s also the question of whether campaign finance laws even work.
The key question is whether, from the perspective of campaign finance, it makes sense to treat massive organizations the same as single individuals.
I’m just enough of a First Amendment fundamentalist to believe that there are plausible arguments for allowing corporations to make political contributions; just enough of a realist to think that it might not make as much difference as a lot of people think; and just enough of a cynic to think that corporations might not be as eager to spend huge pots of political money in plain view of their customers as you might suppose.On the other hand, I’m not credulous enough to think that modern multinational corporations are mere voluntary assemblies of concerned citizens who deserve to be treated the same way as the local PTA. The world is what it is, and in a practical sense corporations have such enormous power that it would be foolhardy in the extreme to think that we can just blindly provide them with the same rights as individuals and then let the chips fall where they may.
Kevin doesn’t raise the issue of labor unions, but I think it’s important, because the example of unions reminds us that the question here isn’t whether profit-seeking organizations deserve unrestricted rights to political speech. The question is whether any powerful collective body should have those rights.
I don’t have any answers to the questions I’ve raised. But that’s my point. I don’t think it’s entirely obvious that the court should’ve struck down the precedents its did.
Cross-posted at Conventional Folly
25 Responses to “A sensible case against Citizens United”
The secret coup is over. Now just the Reichstag needs to be burned to cover the evidence.
Corporations are not people. They are property.
The subversion of the individual voter is now complete. The Corporate Republic is born.
The Mussolini court rules – fascism has officially come to the USofA.
Good post, David. I am still trying to wrap my brain around all the reaction to, and ramifications of, the decision.
Force Majeure.
We can revolt now.
HTML corrected. Missing quote (first one) now appears.
Here is what one actual Constitutional scholar, Ilya Somin, has to say on this subject:
One of the standard arguments put forward by critics of the Supreme Court’s decision protecting corporate political speech in Citizens United is that people aren’t entitled to constitutional rights when they use corporate resources because corporations are “state-created entities.” If the state can create an entity, it supposedly also has the power to define its rights any way it pleases. This is slightly different from the argument that people using corporate resources don’t deserve constitutional protection because corporations aren’t “real people.” But it has many of the same weaknesses, and some additional ones as well.
I. Media Corporations are “State-Created Entities” Too.
The first problem is that, like the “real people” argument, it applies to media corporations as well. On this view, the government would be free to censor the New York Times, Fox News, the Nation, National Review, and so on. Nearly every newspaper and political journal in the country is a corporation. If the Supreme Court accepted this view, it would have to overturn decisions like New York Times v. Sullivan and the Pentagon Papers case.
II. The Impact on Other Constitutional Rights.
A second issue is that this logic applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If people using state-created entities don’t have free speech rights, they don’t have any other constitutional rights either. After all, the supposed power to define the rights of state-created entities isn’t limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property for private use without paying compensation because the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches, most of which are after all nonprofit corporations). If the Free Speech Clause of the First Amendment doesn’t apply to corporate property, neither does the Free Exercise Clause. And so on.
III. Nearly Everyone and Everything is Probably a “State-Created Entity.”
Third, it’s important to consider what is meant by “state-created entity.” If the term refers only to institutions that literally would not exist absent state authorization, it does not accurately characterize many, perhaps most corporations. If the federal government passed a statute abolishing corporate status tomorrow, most actual corporations would still exist and still continue to engage in the same business or nonprofit activities. They just would do so under different and perhaps less efficient legal rules (maybe as LLCs, partnerships, or sole proprietorships). But they wouldn’t all just collapse or go away. There would still be a demand for most of the products produced by corporations.
If “state-created entity” doesn’t refer to the mere existence of organizations currently defined as corporations but to the particular bundle of legal rights currently attached to the corporate form, then it turns out that virtually all other organizations are state-created entities as well. Universities, schools, charities, churches, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all have special government-created privileges and obligations that don’t apply to other types of organizations.
Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.
So government could enact laws requiring citizens to limit their political speech in exactly the same ways in which corporate speech can be limited (or at least condition their continued status as citizens on obedience to the government’s censorship rules). It’s true, of course, that the physical person who has the legal status of “citizen” would still exist even if that status did not. But the physical property and other assets of the legal entities known as corporations would also continue to exist if corporate status were abolished. Indeed, as noted above, many of the entities themselves would also continue to exist under different legal forms. Perhaps you want to argue that native-born citizens aren’t “state-created” entities because the Constitution requires that they be granted citizenship at birth. If so, naturalized citizens are still “state-created” since Congress has the discretion to decide which if any foreigners will get citizenship rights.
By now, the main point should be clear. If you define “state-created entity” narrowly, then it won’t include most corporations. But if you define it broadly as any legally defined status that carries government-granted rights or privileges, then pretty much every important private organization is a state-created entity. Individual citizens may be “state-created entities” as well, and naturalized citizens certainly are. Going down this road would destroy constitutional rights for just about everyone. That may be why even the liberal justices most enthusiastic about campaign finance regulation have been unwilling to really bite this particular bullet. True, Justice Stevens’ dissent does note that “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.” Yet even Stevens stops short of stating that this by itself proves that corporations don’t have free speech rights. I doubt that Stevens and the other liberal justices are willing to really follow that logic. For example, they’re not going to overrule New York Times v. Sullivan or conclude that the government has the power to search corporate property unconstrained by the Fourth Amendment. Yet that is where the “creature of law” argument inexorably leads. The better approach is the common sense conclusion that people are entitled to full constitutional rights whenever they use their privately owned resources to exercise them, whether those resources are legally assigned to “state-created entities” or not.
UPDATE: I should clarify that in this post, as before, I’m not arguing that corporations themselves are “persons” with constitutional rights. Rather, I’m asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights. Similarly, partnerships, universities, schools, and sole proprietorships aren’t people either. But people can use them to exercise their constitutional rights, and the government can’t forbid it on the sole ground that they are using assets assets assigned to “state-created entities.” This distinction was unfortunately obscured in the current post by my shorthand references to “corporations’” rights. I only used that terminology because it’s cumbersome to always write something like “people exercising their constitutional rights through corporations.”
*from The Volokh Conspiracy
Hmm, the government was defending the ban while asserting that it applied to books as well. Funny to compare the side that is not suggesting book banning to Nazis, the reverse is more appropriate.
Tell it to the ACLU, it agreed with the ruling.
If corporations need rights, then some transparent document, maybe a constitutional amendment, needs to be made to transparently define those rights. The problem with saying that owners can use organizations, is that many of them, especially the most powerful, are not groups of like-minded people, so political speech uses the property of disagreeing people to fund something that they are against.
I thought most people were against corporatism, regardless of ideology. I guess I was wrong.
Not really. It's more like it's hitting its teenage years: feeling bulletproof, always hungry, and ready to wreak havoc. It was almost kinda cute when it was born.
..took you long enough to realize that.
By the way, I noticed that you disappeared for about a week and now your icon changed — it even looks like a butterfly.
Rather, I’m asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights.
This assumes that both owners and employees have equal access to the financial resources of the corporation. If Wal-Mart wants to support a candidate who is anti-union, and a check-out clerk wants to support a candidate who is pro-union, do both get to use the corporate identity and bank account to do so?
Hi All
If you quote articles, as referenced in TMV commenter's rules, please just quote a couple paragraphs and then give a link to rest of article. Thanks for helping us to maintain comment flow.
dr.e
It's not the constitutionality of the decision that makes people wary – it's the ramifications and the accumulation of power imbalances.
You can't put a prize on everything, but any corporation will invariably end up making economic calculations about the most outrageous decisions. If the risk coefficient times the cost of a PR backlash is less than the probability coefficient of getting away with an immoral decision times the gains from said decision, they'll go for the immoral decision.
It's like a lottery to them. And the SCOTUS just announced a new raffle.
I think that's seven articles favoring one side of the issue and not one in support of the Court's decision.
The Government Censorship Voice?
It was Mussolini, Hitler, and Stalin who favored government control of private political speech. The irony of those demanding government censorship complaining about fascism and totalitarianism is rich indeed. Maybe we could have an article by Hu Jintao on the importance of censoring political output provided by evil private corporations like Google?
It could be that most people think that it was a decision that will have nothing but negative consequences. It may be from a legal standpoint the correct decision, but it is also the death knell of a “government: of the people, by the people, for the people”.
BTW, since we now know that Corporations have first Amendment rights, when are the Conservatives going to give them Second Amendment rights, without which according to them the first means nothing.
It's quit simple, corporations will now flood money into adds and promotions that elect conservatives. Corporations are overwhelmingly conservative politically. Liberals will have to rely on a few rich people, but mostly grass roots donations from the poor and some middle class. Its an unfair lopsided advantage. Expect regulatory laws to become watered down or disappear entirely.
The constitution will no longer be “Of, By, and for the People”, but rather interpreted and thus controlled by those politicians the Corporations want elected. That would be Generally republicans and conservative democrats. The only liberal ideology allowed into law will be that which is allowed by conservatives. Expect corporations to pay less tax, employee wages to drop, unions banned and poverty to grow more rapidly than it is now as the rich get richer faster and poor become more and more dispossessed.
Why would anybody fight to the death to defend such a country that exploits it’s people as financial prey?
If I could get the ability to put URL's in my posts, I would be happy to.
I never heard back from T-Steel, BTW.
“There’s no question that political speech is at the core of the First Amendment. Restricting commercial speech is one thing, but restricting political speech, no matter who’s doing it, ought to raise much louder alarm bells. On a practical level, there’s also the question of whether campaign finance laws even work.”
*********
What was done was the reverse of what SCOTUS claims as a victory. They have in effect demoted the ordinary citizens ability to speak out to masses via media in elections. They have suppressed free speech instead of awarding it.
Father Time is right, [Welcome back FT both you and I and other moderate lefts were strangely unable to log on the day this SCOTUS decision went through, while the GOP posters here continued to post unfettered. I'm sure it was just a glitch] corporations are property, they are not people. And the 14th Amendment protects equality, not supercitizenry. In fact any de facto supercitizens are illegal under the 14th. To keep them from being was the impetus for writing that Amendment. The 14th recognizes living separate people BORN in the US or naturalized to it. Corporations don't have mothers with womb.
And yes it's time for a revolt. Might I suggest refusing to pay your income taxes this year until the dems grow a pair, seize on the vague powers vested to them in the last line of the 14th, enforce their decree via the FCC and turn their back on trojan “moderate republicans”. If a tax revolt fails then we will fire them next Fall. Yes, we will cut off our noses to send a message. Just ask Massachusetts.
Fine.
We will fight for liberty and justice with the country we have, not the country we deserve. I am thinking of a more violent approach at insurrection more along the lines of our forefathers. Unfortunately ammunition is scarce until the tomatoes are ripened. We will have to wait for a summer offensive.
That's a point that I'm wondering about. I'd be interested to see what tune these “conservatives” sing if they find out that the richest corporations (like banks) turn out to be liberal.
Of course, I know the corporations will mess up everyone that's not their little club, no matter what they believe, so I'm miffed (word chosen for child friendliness) either way.
[...] This post was mentioned on Twitter by TMV and Positive Media, Michael Stryder. Michael Stryder said: A sensible case against Citizens United http://bit.ly/4oajAV [...]
An interesting question, and one that cuts both ways. Walmart may support candidates who are anti-union. Unions will support candidates who many of their own members may oppose. Should hierarchical organizations have fewer rights?
When a workplace is unionized, and that union is electing candidates, well… I just said it, actually: Don't the members of that union elect candidates?
Unconstitutional infringement on the protected right to free speech has been held unconstitutional.
This is an uncontroversial ruling at all to adults who can and will reason. It's pathetic that many, including on this site, are not adults who can or will reason.
“It's not the constitutionality of the decision that makes people wary – it's the ramifications and the accumulation of power imbalances.”
This may be true about some people, but many are preoccupied with making fools of themselves, throwing temper tantrums, making up lies about “activism” about this decision after decades of dishonesty about true activism in past decades, being creative as well as dishonest in their whining such as calling this “another Dred Scott decision,” personifying corporations while expressing hatred for “corporate personhood” (a non-issue here) as well as for corporations, failing to grasp the obvious that what's true for corporations is also true for unions, their beloved Democratic Party, the Sierra Club or Greenpeace, and everybody else — what goes on and on is their whining and their self-discreditation.
“It could be that most people think that it was a decision that will have nothing but negative consequences.”
Probably the consequences will be troublesome — but of course, anyone and everyone with intellectual integrity and maturity also knows that this is irrelevent.
I realize that activists would like invalid rulings that suppress what's unpleasant or undesired, just as they want and have always defended invalid rulings that support or promote what you desire, but you don't get an invalid suppressive activist ruling this time. You got a valid ruling defending an obvious right that an ruled unconstitutional an unconstitutional law that was obviously infringing on this right.
“BTW, since we now know that Corporations have first Amendment rights, when are the Conservatives going to give them Second Amendment rights, without which according to them the first means nothing.”
The correct thing here, which so many of you miss, is what I posted days ago — infringement of free speech is the issue here, and it's similar to infringement of gun rights. (Also related is the misuse of “freedom of speech” by lefties to excuse all kinds of scummy “art” [sic] and poor behavior, stretching the right in question beyond any reasonable limit, whereas there's no such defense, much less extreme, of the true right here to true speech, and political speech, the most historically relevent; it figures lefties would get the Second Amendment wrong, and get the First Amendment wrong in both ways (excessive and deliberate denial).