Corporations Are A Legal Fiction, And Now So Is Political Speech
Fiction. As in, not real. Which is pretty much what the United States Supreme Court has made of our fundamental right to freedom of speech when political speech is involved. As in, made it not real but just a fiction of a concept.
From SCOTUSblog on this point of corporations being only legal fiction:
Justice Stevens, writing for the dissenters, turned Chief Justice John Marshall’s celebrated comment in the Dartmouth College case — in a ruling that actually favored the corporate form — into a belittling comment: “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.” [emphasis added]
Besides politicians, you know who will make a lot of money off of Citizens United? The first law school textbook publisher who comes out with the corporations law textbook needed for law schools, since they will have to change their corporate law curriculum to explain the Sybil-like personalities of the previously all-fiction personhood of corporations.
Some reading to do for more on this SCOTUS decision:
Ellen Miller (Sunlight Foundation): How the Citizens United Case Affects Money & Politics and Tranparency as We Know It
Micah Sifry (techPresident): Can the Internet Counter the Coming Gusher of Money in Politics?
Jill Filipovic, who is a lawyer: Democracy, It was fun while it lasted
Lawrence Lessig of Change Congress and Creative Commons: Institutional Integrity: Citizens United and the Path to a Better Democracy
On Angry Black Woman: There goes America’s democracy: I never thought I would be living in a dystopian cyberpunk novel!
From Open Secrets: Whose been giving corporate money within the previous confines
Three must-read posts from SCOTUSblog.com:
- The decision in plain English
- Lyle Denniston’s Analysis: The Personhood of Corporations
- And two round-up posts of other posts here and here
Be sure to keep up with the Sunlight Foundation, one of the premier organizations that focuses on transparency. They have posts related to Citizens United organized under a tag.
And be prepared to learn how to use every tool that exists to track contributions, and be prepared to boycott the corporate “people” giving in ways you don’t like. I still can’t wrap my head around how we’ll deal with foreign corporations.
Last but not least, this LTR from the NYT yesterday puts it best:
To the Editor:
Why is everyone up in arms about the recent Supreme Court decision allowing corporations unfettered monetary access to the American election process? To me this is a golden opportunity, as now our elected officials can sell corporate naming rights to their seats.
The junior senator from North Carolina? He or she is now the Bank of America senator. The senior senator from Alaska could be the Exxon senator.
The politicians may never have to fund-raise again! Think of all the time that will save to actually legislate.
Randy Levinson
New York, Jan. 22, 2010
Cross-posted from Writes Like She Talks.
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82 Responses to “Corporations Are A Legal Fiction, And Now So Is Political Speech”
Jill,
“this court has been activist in this case, they have given powers to an entity that is a statutory creature and whose existence as a person is due to our patronizing the entities or giving money to them. For those entities that are solely the value of the individuals who created it in the first place such as a nonprofit solely for an issue, why isn't the structure of what we've had adequate for their speech? McCain Feingold and previous efforts reflected a greater majority and the fact that 24 states have restrictions also indicate a broad-base for restrictions.”
It's all in how you view it but your just wrong. SCOTUS has not dramatically increased the “Personhood” of corporations with this ruling. The ruling of the court have long accepted corporations as such and this is entirely in line with those rulings. And State constitutions are not carbon copies of the US con. What can be very legal on a state basis can be a violation on a federal basis. That states also have laws should have little to effect on the constitutionality of a federal statute in almost all conditions.
You complain about Judaical activism I would posit that it was activism to previously rule in a way to lead people to believe that limiting speech was constitutional. The courts did so not because it was clearly so but because they were afraid of the effects on society. So if you go by strict constructionism the courts were activist then not now. Again even Stevens referenced, actually warned may be closer, that the majority was looking too narrow without enough concern for the results. Hmm? Personality the results, unless catastrophic and I don't think this will qualify, fall second to the Constitution if it is to have real meaning.
And with your issue with corps. Sure it was a corporation that brought this case. The corp was a group of citizens who formed a group and decided to use a corp structure to produce a political film. This was not Exxon and the law just didn't stop Exxon from showing a film. It stopped a group of citizens who joined in a corp structure to try and increase their ability to speak out. By stopping Exxon you also stopped these people and on the face would seem like a basic violation of their rights of free speech. Sure you are worried about Exxon, so am I, but you have ignored the regular citizens that the case was about. Form a non profit? I have no idea why they chose a corp over a non profit, and don't care. Maybe they also wanted to make a buck, should Moore have been stopped from showing his movie? That would seem wrong be the main difference would seem to be his desire to make a profit.
You're selecting to listen to and/or interpret what I've written in the most concrete way you can muster. That's your choice. It doesn't make my assertions wrong – or that of many millions of other Americans who appear to feel the same way I do about this decision – not the least of whom are the four justices who wrote in dissent.
You need to look at tibits' comments. The court chose to expand the scope of the case when it didn't need to.
I would hope that it would be possible to allow a group of people who gathered for a single purpose to act as a group, without allowing a heterogeneous group to speak as one voice against the will of some of its members.
“It doesn't make my assertions wrong “
Again, referring back, it's not about right and wrong, it's about deciding where to draw a line. It is and always will be a judgment call. Personally while I may not like some of the consequences I would rather they err on the side of free speech. You were the one saying the decision made a “fiction” of free speech. I'm not ignoring your arguments, you disregard mine.
“You need to look at tibits' comments. The court chose to expand the scope of the case when it didn't need to.”
What comments? If they are elsewhere maybe you should repost them to make them part of this discussion.
“I would hope that it would be possible to allow a group of people who gathered for a single purpose to act as a group, without allowing a heterogeneous group to speak as one voice against the will of some of its members.”
And your belief that this group acted against the will of some of it's members is caused by what?
EEllis – you specifically wrote, and I quote:
“It's all in how you view it but your just wrong. “
I was asserting that our different POVs do not make mine wrong. You made it about right and wrong. I don't actually think it is, necessarily – but then all of law is like that or at least a very large portion of it.
Why do you say I'm ignoring your arguments simply because I don't buy them and am not choosing to take them on as good arguments that I'll now use? Are you really taking it that personally?
We have inalienable rights, while corporations have the rights we give them. That is my view of who should have fundamental rights, given to individual human beings. Corporations only get those if we choose to give them to them.
Have you read Tribe on the case yet?
http://www.law.harvard.edu/news/spotlight/const…
“Corporations are a statutory creature, not sentient beings otherwise covered by the Bill of Rights.”
Of course. More generally and applicably, there has to be a way to identify all legal parties, not only natural persons, in legal actions and disputes. (That includes the states, though they are subject to additional Constitutional constraints insofar as legal actions are concerned.)
The point is, this is an object of hype by the left, which also happens to be irrelevent. Logic 101, or even 100. The source of the speech is irrevelent; fixation or obscession with corporations, merely one kind of source, is tangential and often among lefties is an expression currently of neurosis. (Listen to lefty talk radio and verify.). That it is speech is the issue, and this can't be subjected to infringement. That's what matters here.
Never mind the ironic or even hypocritical personification of corporations by corporation-haters who are mad about their legal personification. That's bad enough. Also note that organizations of all kinds, as well as all kinds of natural persons, engage in political and other forms of speech (speech-speech, not degenerate behavior claimed to be “art” under a ridiculously hyped redefinition of “speech”), and corporation-haters are laughably ignoring not only other examples like labor unions, but also political parties(!) as well as lefty groups like Greenpeace, all of which would have to be banned fully from politics if corporations were banned in some way.
________________________________
Better yet, here's the thread, starting with his comment:
http://themoderatevoice.com/60268/an-open-lette…
It isn't “this group” that I'm worried about, but there are groups that do. I'll repeat what I said in yet another post (there's too many of them):
The AARP fought the balanced budget amendment, which most of their members favored.
Unions are fighting for card check, which most union members are against.
Whole Foods' owner was against the health bill, when most of his clients were in favor of it.
http://themoderatevoice.com/60129/dont-overread…
My graduation from college depended upon me presenting and defending a thesis on the sociological underpinnings of the Sherman Anti-Trust Act. The forces behind the creation of corporations is and has always been focused on profit. We can call their expenditure of money to get what they want from the political process “political speech” but that doesn't make their “speech” the same as mine.
Then the best prevention may be regulating the control of corps not speach
“It's all in how you view it but your just wrong. “
I think I made a mistake in that, meaning to write a longer sentence and some how skipping over part of what I planned to write. That is a poor expression of what I was trying to say. But it was about you calling the court activist not about your belief in the correctness of this decision.or saying that because States had similar restrictions that somehow would affect the constitutionality. Obviously it was poor phrasing because even I am not sure what it directly related to.
“Why do you say I'm ignoring your arguments simply because I don't buy them and am not choosing to take them on as good arguments that I'll now use? Are you really taking it that personally?”
I said disregard not ignore but …….. I was trying to say that my point wasn't about right and wrong. That my original point was “drawing a line” not right and wrong. You were much more this is wrong, wrong, wrong. If that is the case than I am not denying your beliefs because it's a discretionary thing not concrete, you by trying to say it is concrete are disregarding mine. I hope I made it clearer. No I'm not taking it personal.
“Have you read Tribe on the case yet?”
I would say only that I share neither the jubilant sense that the First Amendment has scored a major triumph over misbegotten censorship nor the apocalyptic sense that the Court has ushered in an era of corporate dominance that threatens to drown out the voices of all but the best-connected and to render representative democracy all but meaningless.
Yes
“but that doesn't make their “speech” the same as mine”
Except to SCOTUS
I believe that (the control of corporate “speech”) is all most of us want.
That may be true but the pesky constitution says “freedom of speech” so while it may not be as satisfying maybe constitutional methods could be applied.
Corporations were created at the level, if I understand the law correctly, so you're saying that we would need 50 states to come up with coherent laws, or a constitutional amendment defining what rights corporations have.
I have no federalist papers to fall back on here, but I'm sure that the founders were defining the rights of natural people in the constitution.
Precisely – thank you:
“I have no federalist papers to fall back on here, but I'm sure that the founders were defining the rights of natural people in the constitution.”
“Corporations were created at the level, if I understand the law correctly, so you're saying that we would need 50 states to come up with coherent laws, or a constitutional amendment defining what rights corporations have.”
Why? The law that was partially stuck down only referred to fed elections which would be well within the interstate commerce clause. As long as the restrictions were about using corp. money for the good of the business I don't see a real problem. You don't limit speech you limit the ability to use money.
I think we just reached a breakthrough!
Not really. Exxon should be able to spend thru the roof against cap and trade for instance, but any shareholder can sue for money spent in opposition to the corps interest. Focusing on that control, the control of the shareholders would be a constitutional way to go about it.
“If you want smaller corporations, then you are going to have to massively downsize the government.”
Super D., I didn't neglect this earlier, but was preoccupied with dispelling the leftist myths about this decision and the accompanying — agitation about it. What you say, of course, is right. That there is a corruption and influence-buying and peddling problem (which is separate from political speech, and which may be addressed by “truth” and “transparency” related laws, though not with the intention of suppressing anybody's views, which is what leftists want done against Evil Corporations) is in large part revealed by the frequent context of elections and government these days. Namely, it is the federal government alone that is routinely on people's minds. That is anti-federal and anti-American, but it is commonplace. Why is it? It is because, along with the corruption problems, Washington has become oversized and so powerful and influential that its power and influence is more valuable than ever.
Control the shareholders? Wow. Okay. We're on different planets.
In my mind, the opinion is indeed wrong, both from a jurisprudential POV and for me, personally, in terms of how I view what are the critical elements that form the foundation of our trust in government and society. I do, however, understand that people who disagree with me aren't necessarily wrong – including the court since they are the Supreme Court – their decision makes it so. I did just fine in law school and on the bar and in practice, thanks.
But generally speaking, I don't usually write such posts because of a technical sense I have about something. I'm far more forest for the trees. And this decision threatens the forest, from my POV.
Fare enough I see the constitution and free speech to be more important than a concern that can be dealt with in other ways
Even now in most states shareholders can bring sute against managment for actions not in the best intrest of a corp. There are other options some outlined in in the link you gave
http://www.law.harvard.edu/news/spotlight/const…
That's high and mighty of you EEllis but it's also inaccurate as far as a statement about what I see as important. Something tells me you are aware of that and just in provocation mode. Regardless, I'm glad you've shared your views – I'm very certain there are a significant number of people who feel similarly, even though I don't.
This comment re-emphasizes your acceptance of placing the onus on the shareholders. I disagree with that from the start. There is not equal bargaining power as between the shareholders and the corporation, that is part of the problem of the corporate veil and why, if the veil drops for political speech I believe it should be dropped for all matters of liability.
I think Tribe has written a piece worth reading – I don't agree with all of it.
In this case it is true. Understandable maybe, no right is without limits, but accurate. You may have gotten riled about my comment but that doesn't affect the accuracy of my statement.
Honey – as a lawyer, I feel totally fine in saying you are no more accurate than I am. I will always be in the best position to know what I see as important. Let me know when you've become a bodysnatcher and can do that better for me. Oy.
OK so call for the dropping of the corporate veil, wouldn't bother me in the least. A far as putting the onus on the shareholders, yes and? The idea that a person should be involved in a business that they have an ownership in doesn't bother me either. Freedom doesn't mean effortless. The ideas that Tribe put forth would seem to cover many of the concerns, maybe other things could also be done, all without restricting free speech.
Ok Work yourself up as much as you want. You said that the concern over possible corporate abuses justify the restriction of free speech (or am I paraphrasing wrongly). So in this case how you can call my statement inaccurate is beyond me. It must be a lawyer thing.