More Obfuscation About Corporate "Speech"
Many "progressives" (even at the ACLU) who've sympathized with the Supreme Court's rollback of almost all public regulation of corporate expenditures in elections accept the Court's declaration that it's defending "freedom of speech" against "censorship."
It isn't. Nothing in campaign-finance laws that the Court is eviscerating ever really barred big business from inundating us with its "speech" and Congress with its lobbyists. This is a coup against something else.
An unusually impassioned New York Times editorial got it exactly right, but, this morning, Times reporter David Kirkpatrick (show-cased in the Week in Review section by its editor, Sam Tanenhaus) lazily shoots down the claim that corporate election money corrupts. No one can prove it, sniffs the newshound.
Maybe not, but the bigger danger is that debate among citizens is being skewed and drowned by simulated voices of non-corporeal (often non-American) entities that can't be swayed by debate, as citizens sometimes can, to rise above their bottom lines. The First Amendment wasn't written to protect business corporations -- a fact that's only confirmed by its specific exemption of "the press" from regulation of speech. Other corporations are fair game. Citizens can speak for business interests anytime. So can corporations' paid voice-overs - when we, who created them, allow it.
I made this point here below, but not in neon. So I give the floor to "Man's best friend," who posted this comment there: "Corporations are a legal invention whose sole purpose is to protect property rights... They can enter into contracts, which govern the exchange of money and property (or services...). They can sue or be sued, impose or have imposed liens on property. There are NO rights of natural persons that appertain to corporations other than those connected with property rights. They can't vote. They have no 5th amendment protection against self-incrimination. They do not have free speech rights."
Get it? Conservative justices pretended not to, thereby violating the Court's and the republic's most basic principles. So did the Emperor Augustus, who permitted Romans to continue to hold noisy elections with "all the wild inconveniences of democracy" even as he and others drained the fading republic's offices of power and honor. So now, too, with Roberts court majority and our already enfeebled Congress.

















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January 24, 2010 10:44 AM | Reply | Permalink
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March 25, 2011 10:00 AM | Reply | Permalink
I don't see regulating the involvement of corporations as political speech. What this decision appears to do is to give the owner of the megaphone that transmits political speech the power to broadcast or suppress what speech is provided to the voting electorate. What does this do about the the decisions of FOX, CBS, etc. to refuse to accept the political ads by MoveOn and such?
This decision gives control of the flow of broadcast speech entirely to the fictional entities called corporations. Controlling the flow of (one-way) broadcast speech through corporate controlled media differs sharply from actually speaking. This gives the corporations that control the mass media complete power to spread their own messages at will - while they claim to have policies in place that lets them prevent those they don't like from getting access to the same broadcast media.
This morning George Will said that Social Science can't document cases in which corporate money changed election outcomes. Typical George Will lying Crap. In 2002 Tom DeLay laundered corprate money through the Republican National Committee and sent it to Republican candidates for election to the Texas House of Representatives. The corporate-sourced money was illegal under Texas law. The result what that the Texas House of Representatives went Republican for the first time since Reconstruction. The outcome was that the Republicans did an unprecedented between the census redistricting of Congressional Districts in Texas which resulted in a Republican gain of five Federal Congressmen in 2004 - and also resulted in an indictment of Tom DeLay for violation of Texas election law that resulted in his removal from Congress. It does not appear to me that the Texas law would now be enforceable (I'm no lawyer. My inexpert evaluation.)
Since when is the government in business to provide for the general welfare of corporations rather than for human beings? Oh, yeah. Since the conservatives got five Catholic authoritarians appointed to the Supreme Court - for life. That's when.
January 24, 2010 12:21 PM | Reply | Permalink
January 24, 2010 3:40 PM | Reply | Permalink
My capability to properly capitalize words in English was totally destroyed when I took German where all nouns are capitalized. The result is that I find it difficult to either recognize or write with nuance using capital letters.
So it probably wouldn't be at all fair of me to say that I was glad you noticed.
January 24, 2010 4:28 PM | Reply | Permalink
This breathtakingly obtuse ruling could kill what remains of American democracy. Greg Palast of AlterNet has the scariest take:
http://www.truthout.org/the-supreme-court-just-handed-anyone-including-bin-laden-or-chinese-govt-control-our-democracy56332
January 24, 2010 2:17 PM | Reply | Permalink
Palast:
our future elections, while nominally a contest between Republicans and Democrats, may in fact come down to a three-way battle between China, Saudi Arabia and Goldman Sachs.
I have read Palast for years and to say the least he can be a bit on the shrill side.
Frankly, Goldman-Sachs already owns Congress, and China and Saudi Arabia can already call the key shots (relating to their interests) with the US due to their foreign exchange reserves and/or oil.
Believing China or Saudi Arabia want to get deeper into election finance in the US is one step removed from those who think the UN wants to take over this country aka the 'black helicopters' route.
January 24, 2010 8:30 PM | Reply | Permalink
The comment you included
seems to me to be something that can be changed by legislation.The apparent legal fact of the personhood of a corporation - given by legislation and not by the Constitution - seems to me to be subject to change by legislation.
Doesn't that mean that the Legislature can in this case override the Supreme Court decision?
January 24, 2010 2:19 PM | Reply | Permalink
I'd very much love to see legislators try, Richard. But I suspect the Corporate Party already has majorities in both houses, and this ruling gives it just enough time to organize and buy a whole lot more seats.
Unless there's a bona-fide popular, populist uprising, the Corporatists will have a perpetual stranglehold after November.
In my fevered imagination, President Obama would use his State of the Union address to launch such an uprising, rallying everyone from angry progressives to angry tea partiers to save American democracy, if necessary through a constitutional amendment.
But I fear I have a better imagination, and perhaps more audacity, than the president does.
January 24, 2010 2:58 PM | Reply | Permalink
I don't know how many conservative politicians are going to be happy with this politicized Supreme Court decision. It seems to me that the Legislature could pass a bill that stated something to the effect:
An alternative to the second part might be to simply remove jurisdiction of the courts over such disputes. That is, unless I am wrong, clearly Constitutional. It is also something that the judiciary has carefully avoided for two centuries.The political aspects of getting such a bill passed would depend on how upset the voters were on the subject. That issue becomes something that the public relations individuals should almost immediately be active in framing. That effort should be started immediately because whoever starts first is going to win the political race, and right now it looks to me like the public opposes this piece of obvious judicial overreach.
January 24, 2010 3:55 PM | Reply | Permalink
Of course the corporations controlling every last bit of our news media will happily report the grim details about the consequences of this Supreme Court decision. And, equally so, Santa Claus will bring each of us a Ferrari with a 400 hp engine and a prepaid gas card to allow us to drive it.
Sorry, Joe Average will continue to know for certain that the only consequence of the decision is to stop the unconstitutional suppression of our free speech rights. So, why expect Joe to get involved in any scheme to overturn that ruling?
January 25, 2010 12:32 AM | Reply | Permalink
That's a big "Unless." I think I am seeing a general revolt against the failure of government to govern and against the blatant publicized horse-trading that has characterized the 60 Democratic Senators working on health care reform since last Summer. The 2008 election was pretty clearly an anti-incumbent reaction to the Bush administration, one the Democrats were glad to ride in on as they were the early opponents to the Bush incompetents. But it wasn't a Democratic landslide. It was a "throw-the-bums-out" landslide.
The tea baggers of August were an effort to organize the libertarians, right-wing anarchists and anti-government types who tended to be attracted to the Republican ideology to begin with and use them to attack the Democratic health care reform bill. But the Republican Party with their strategy of total "No" have also demonstrated they will do nothing to meet the problems of Americans. By their strategy of requiring the filibuster on everything they have forced the Senate to operate with 60 non-Republicans operating in unanimity. This required unanimity sets every one of the 60 Senators into the power to veto the actions of the Senate. So we got the extremely unattractive antics of Lieberman and Ben Nelson along with the ugly horse trading. This turned a lot of people (including me) off the whole process.
For a public that faces massive problems - particularly economic, but a lot more - this means that removing the Do-Nothing Republicans in 2008 did not give us a working government. Now we also have the anti-incumbent/anti-Republican left wingers as well as the anti-incumbent/anti-Democrat right wingers. The one clear common thread is that all of them are anti-incumbent and angry at the incompetence we are seeing in Washington.
2010 is not going to be a good year for incumbents, but I see nothing in it favorable for corporatists. Wall Street Banks and the insurance companies will not go into the election with much on their side. A Republican candidate trying to defend them is going to find himself set up for a lot of significant attack ads. I wouldn't be completely surprised to see both parties running against the corporatists.
As a rough guess both parties have to work to get the public to vote for them next Fall. The Republicans have rhetoric and the favoritism of the media on their side. The Democrats will have to counter that by accomplishing some things the public wants between now and November. Congress will have to act. Obama has already started with his effort to tax Wall Street banks to get the taxpayer's money back. They've got 8 to 9 months to do something, and if health care reform is killed then so are the hopes of the Democratic Party.
[This opinion is to be considered stale and perhaps spoiled by June.]
January 24, 2010 5:48 PM | Reply | Permalink
Barney Frank stated as much last week. He seemed confident saying his committee was taking immediate steps and is working with the White House. Hope springs eternal.
Another road seems to me to be through FCC regulation. The power of all of this money is the power to buy TV time over the publicly owned airwaves and publicly granted right of ways for cable. The FCC can mandate a requirement of all broadcasters to provide free advertising and debate time to qualified political candidates.
This can be accomplished legislatively or pehaps by executive order. Either way this ruling may finally force Obama and the ever shy Democrats to finally realize they need to pick a side because whether they like it or not the class war is upon them.
This idea has been floating around for decades but now the crisis is upon us and it is now or never. The Democrats have been given the power now in our hour of most dire need and it is time (the last minute) to use it or lose it forever. Save the republic now or call the whole thing a farse and bid the dream farewell.
January 25, 2010 6:11 AM | Reply | Permalink
I doubt that it is possible for the FCC to mandate broadcasters to provide free debate time and free advertising. I don't think there is much future for broadcast TV. It is in the process of dying out.
Their revenues and audience has been dropping, which is why they are abandoning prime time scripted dramas and the audiences those bring in. That's why we have been getting reality shows and reruns instead of the kinds of decent drama that used to be there. The real story behind the Leno - O'Brien situation is that Leno was filling the last hour of NBC prime time at one-third the cost of scripted dramas, but he lost the audience and the advertising revenue of the dramas. The affiliates couldn't afford the audience and revenue reduction in the Evening News.
Then the shift to high Density has made most of the existing TV sets unsuitable for receiving reliable signals over the air. The FCC has already in effect mandated that everyone shift to - and pay for - cable. The audience that is left for broadcast TV after everyone who wants good shows won't be enough to support the advertisers who pay for the broadcast TV plant and equipment.
In this environment there is no way the FCC will mandate that broadcasters provide free advertising and debate time, and even if they tried the audience isn't going to be there. Most TV audience will be on cable which is not public airways.
January 25, 2010 10:38 AM | Reply | Permalink
The FCC does hold jurisdiction over cable transmission as well as over the air transmission. Congress can mandate new regulations for cable broadcasters. The fairness doctrine was policy for all TV and radio broadcasters for decades and this was not challenged in court so congress should have the authority to reinstitute this for all public right of ways including cable. Cable broadcasts of course at some point also use the public airwaves. But it is all communications in the public sphere so the FCC has authority.
I know that privatisation of the public commons has become the accepted norm but the truth is we still really do own it and this is a perfect time to make a stand to take it back. After that maybe we can take back our voting system. Maybe even our water, roads and schools. Gosh it's exilerating.
p.s. thanks for responding, f.pie
January 25, 2010 3:28 PM | Reply | Permalink
January 24, 2010 4:02 PM | Reply | Permalink
I don't know that this is the case, but it seems to me that Obama entered the bubble of the White House with a specific view of what the political situation was at that time and selected his staff with that view in mind.
The pace of demands on the President through 2009 has been more than on any prior President perhaps as far back as Lincoln, and since communications were so much slower in Lincoln's day it was less necessary to insulate executives from the constant flow of information. The individual in those days could deal with the flow himself. Today the buffer has to be institutionalized. Much of it is delegated. The greater size of the White House staff is another result of the increased information flow.
Assuming that to be the case, we may be seeing the reactions of Obama's staff when we see decisions from the White House. Those staffers were selected to make certain kinds of decisions and to protect Obama from excessive unnecessary demands (which is the nature of the WH bubble.) That means the a lot of White House decisions were actually preprogrammed by the selection of staff. With fewer issues to be dealt with, those staffers can be supervised so that they adapt to the newer situation. As it is, most of them don't get the advantage of getting Obama's latest guidance.
Obama is going to have to prioritize which staffers get intense supervision and which run on autopilot. An executive is not going to see outside the bubble until a lot of things start going other than intended or a few things go really badly awry so that the results break through that bubble.
Still accepting my assumptions, the current health care reform disaster should be big enough to break through the bubble - if Obama has enough smarts to pick up on it. He rarely telegraphs his moves, so his recent comments suggest that he has gotten the message from the problem. How he deals with it is something else.
Those smarts are the kinds of things that an executive gets from experience. Neither academics nor politicians are likely to have learned the tools required to deal with such situations. Obama isn't going to just have to understand and write or talk about the situation. He is going to have to direct White House action. It's my impression that doing it on this scale is very new to Obama. Clinton struggled in his first year, and Bush simply delegated either to Cheney or to his Chief of Staff.
Even if my assumptions are correct and Obama does have the ability to learn to deal with the current high level of crap [*] flowing his way, that still doesn't mean he'll get things right in the less important issues. Those will still be delegated to staff, and there is a political penalty to shuffling staff.
The other extreme is that Obama is simply a replacement for Bush who appears to have been completely unable to adapt and move beyond the limitations of his office and the staff he trusted. I didn't think that Obama is likely to be close to being so inept. But it's a continuum, not an either/or situation.
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[*] Interesting. I notice that I did not capitalize "crap" in this instance. I must have intended earlier to personalize the term to George Will. But it really was not conscious.
January 24, 2010 5:10 PM | Reply | Permalink
Obama "is learning on the job and he is nothing if not a quick study. . . . His political survival is at stake and all his dreams with it and I expect him to come out fighting soon."
We are definitely at some kind of turning point when David Seaton expresses optimism about what Obama will do next.
"Soon" has to be two days from now. He has to make his State of the Union address one of those "teachable moments" he used to talk about.
With the benefit of a bruising year in office, he has to get very specific about what constitutes "hope and change" -- and that includes rallying people of all parties to reverse the Supreme Court's grotesque ruling.
Formally file for divorce from Wall Street; dump Bernanke and bring Volcker in from the cold. Give Howard Dean the job of reviving health reform; fire Rahm if he objects. Tell Harry Reid Democrats no longer need Lieberman to get to 60.
Obama initially won office on a promise of inspired leadership. The public is crying out for exactly that. Time to deliver!
January 24, 2010 7:27 PM | Reply | Permalink
Jim wrote:
"The First Amendment wasn't written to protect business corporations -- a fact that's only confirmed by its specific exemption of "the press" from regulation of speech."
But I don't think the First Amendment is the core issue at stake here. It seems to me that it was the 14th Equal Protection that was assumed to cover corporations as well as people in the 1886 Santa Clara v Southern Pacific by the judiciary that has given rise to any constitutional protection apart from trade and property.
But times have changed since 1886 and, now that Foreign Corporations, Sovereign Wealth Funds, and even the U.S. Government can be and at times are majority owners of corporation, I wonder whether or not this position is open to meaningful challenge in the SCOTUS. And if it is I wonder how that would effect last week's decision.
I also wonder if there is a progressive equivalent in the legal profession to the Federalist Society committed to finally defining whether or not a corporation is a person for the purposes of the First Amendment.
Any constitutional attorneys out there care to comment?
January 24, 2010 7:08 PM | Reply | Permalink
You're right, I think, that the Santa Clara case in which corporate "personhood" was established turned on Fourteenth Amendment equal protection concerns, not First Amendment. But, of course, once that bridge to "personhood" was crossed, the (phony) path was opened to what we're contending with now.
As for who is working on this, a commenter on my earlier post offers this:
Okay, it didn't take me too long to find some web sites taking up this cause. This place is new, and may gather momentum:
http://movetoamend.org/
Here is another worth looking into:
http://www.reclaimdemocracy.org/political_reform/proposed_constitutional_amendments.html
And I should have thought in my first post to reference People for the American Way, because I already knew that they have been on this issue all along:
http://site.pfaw.org/site/PageServer?pagename=media_2010_01_pfaw_calls_for_constitutional_amendment
I'll keep digging.
-- ARG
Posted by ARG in Chicago
January 22, 2010 10:24 PM | Reply | Permalink
January 24, 2010 7:43 PM | Reply | Permalink
While I generally agree with your sentiments, I find that Mr, Greenwald has altered my perspective a bit.
When you say that conservative justices have done this, note that all nine endorse the free speech rights of corporations.
We should also admit that the status quo ante was an abject mire of ineffectuality. Perhaps it takes a paradigm shift such as this decision to get to a real solution, including public financing and some effort to federalize corporate charters. In my view the main problem here isn't that these corporations have this or that right (whether de facto or de jure is moot), but that they are allowed to exist, accumulate such influence and to persist in perpetuity and with impunity.
January 25, 2010 9:10 AM | Reply | Permalink
And I see, via Ezra Klein, that Justice Stevens was very sensitive to this problem though not to the underlying question of corporate rights in the constitution:
"Justice John Paul Stevens focused on the same concerns in his dissenting opinion. The majority's position "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans," he writes."
January 24, 2010 7:44 PM | Reply | Permalink
Remember when the five were confirmed and they termed themselves "strict constructionists"? Ha! SCOTUS is a joke that does not inspire much respect (if any).
January 24, 2010 7:49 PM | Reply | Permalink
Republicans never tell the truth, if you haven't noticed.
January 24, 2010 8:31 PM | Reply | Permalink
Since when is the government in business to provide for the general welfare of corporations rather than for human beings? how to simulate a blowjob | give head
September 6, 2010 7:24 AM | Reply | Permalink
Look Mr. Sleeper, If you want to talk "inundating us", Go to the movies and watch 'Avitar'.
Young children get the union fed Obama doctrine in grammer school.
Over 400 speeches is "1984" come true.
Please Mr. (Henry Higgins) Sleeper you are not going to make Pres. (Eliza) Obama in to a sucessful business man with your angry words.
January 25, 2010 1:00 AM | Reply | Permalink
I agree with others about the pernicious effects of this decision on our democracy in practice. I am, however, a little less certain that the decision is wrong in theory. Corporations are really nothing more than groups of people formally organized to accomplish some end. Most business corporations are formally organized to make money (or protect property as someone posted above)--but there are plenty of other corporations organized for other purposes, including advocating for various altruistic causes. It does seem to me a bit of a stretch to say the Constitution envisioned free speech as merely a right of individuals and not of formally organized groups of individuals. In fact, the ability to prevent formally organized groups from speaking freely, seems to weaken even individual speech rights, because (on their own) individuals are relatively weak, but in groups they become stronger. This is why organizations (corporations) like the Sierra Club exist. Individuals (except maybe very wealthy or well-known individuals) are not all that effective on their own speaking in favor of environmental reform. But, when they join into groups, they are for more powerful and far more likely to be heard. I also don't agree that the "freedom of the press" clause was written to protect the right of a particular industry (the news media). I think it has a much broader meaning--that people (acting as individuals or as groups) --have the right not only to speak, but to publish their ideas. Freedom of the speech guarantees a right to express ideas; freedom of the press guarantees a right to distribute those ideas.
Our democracy is, however, in crisis, and this decision magnifies that crisis. The core problems, as I see them, are four:
I wish I knew how to solve each of these four (interrelated) problems. The campaign laws that were in effect until the Supreme Court decision may have reduced the impact of the fourth factor, but it hardly removed that factor. These four problems have plagued us for years--and increasingly seem to me more and more intractable. Increasingly, I despair at the ability of our democracy to solve any of these problems unless average voters become more involved and more informed. But how that happens is well beyond me.
January 25, 2010 7:44 AM | Reply | Permalink
Purple, it's a bit specious to say of corporations that they are mere 'groups of people organized to achieve some aim'. That is true in the sense of management and employees are organized to achieve some end - profit - for their owners. But these 'free speech' rights are not rights OF EMPLOYEES so organized to engage in political activity. It is conceived of as free speech rights of THE OWNERS - the shareholders. And given the current corporate governance setup it is a joke to say that the political engagement of managers represents the informed choices or intentions of said shareholders. I may give money to Greenpeace because I want to save the planet and thereby, in their political activities, they do represent my choices and intentions. Yet I may also (very likely) be giving money to Exxon-Mobil through my pension fund or index-funds etc, and it is hilarious that these SCJs think that Exxon thereby represents my choices and intentions in lobbying for more polution, war, offshore drilling, misinformation on greenhouse gases. Sure, I could write to my pension fund and complain, or change from an index-fund to picking my own stocks according to my political inclinations and my best efforts at understanding the political involvement of particular corporations.
Somehow all investors - i.e. pretty much everyone - are supposed to make themselves aware of all the (usually hidden) political activities of all corporations in the capital markets because by our direct or indirect investment decisions we are seen as implicitly endorsing all such activity.
It's ridiculous, sorry.
January 25, 2010 9:10 AM | Reply | Permalink
Governance of publically owned companies is a mess--I agree with that. But under current law corporate management and boards of directors are authorized to make decisions for the corporation based on their own judgment about what's best for the shareholders and the corporation. That's pretty much true whether the decision is to build a new factory in China or lobby a congressman. Shareholders may be nominal owners, but most decisions about what the corporation does are delegated (by law and corporate bylaws) to management and directors. Under law, the shareholders are not the "agents," the corporation itself is--and in most corporations the managers and directors, not the shareholders, have the ability to decide what the corporation does.
January 25, 2010 11:31 AM | Reply | Permalink
Purple State, I think you're coming a bit late to this discussion at TPM. Could I persuade you to read my post, a few posts below this one, that addressed two of your concerns?
http://tpmcafe.talkingpointsmemo.com/2010/01/22/the_roberts_court_announced_this_coup_in_september/
There, I explain what's wrong with the Court's line that since corporations are human creations, they're really nothing but voluntary associations of people and therefore deserve rights of free speech.
Corporations these days are associations of people who don't even know that they "own" them (the average pensioner or 401k retiree's "ownership" of corporations changes often with the clicks of brokers' mouses), and it is just fatuous to assume that corporations are deliberative bodies whose owners and/or members can decide their fate by considering any parameter but the shifting stock price. "Speech" that emanates from a corporate officer or hired voice is not free speech in a debate among citizens who might persuade one another to rise above their commercial interests for the good of the whole (which, believe it or not, is not the same as the good of commerce.) Corporate speech is not free speech.
Yes, labor unions and mom-and-pop businesses are often corporations, and they are now "liberated" to spend their money on electioneering, too. But guess who wins in this new floodgate of spending on campaign speech? My other post addresses this, too.
January 25, 2010 12:38 PM | Reply | Permalink
Jim, I have read your past post. I'm willing to be convinced on this one (because, as I said, I fear the Court's decision will have pernicious results), but I'm still finding the distinctions you (and others) are making a bit murky. It seems to me that you are trying to say that individuals (natural persons) have the right to endorse candidates, but organizations have that right only if they are acting as spokespeople for natural persons and are not speaking for themselves as entities separate from any particular natural person. A lot of the argument presented here for restricting corporate endorsements seems to rest on the fact that public companies do not speak for their natural-person owners (shareholders) but instead can speak only as entities. If we accept the premise that organizational speech is protected only if that speech can be "traced back" to natural persons, then private companies might have speech rights but public companies wouldn't. This seems a strange result to me, if the goal is to prevent for-profit corporations from unduly influencing the political process. I'd be more comfortable, I guess, with some argument that explained why the political activities of all types of public or private for-profit corporations (or businesses, because not all businesses are corporations in a legal sense) could be limited. I've been struggling to find that argument myself, but haven't settled on an argument that I find fully convincing. Intuitively, though, I think we should be focusing less on the idea that free speech is a right of natural persons only, but instead be looking for a way to justify the regulation of political activities (whether speech, funding of campaigns, or lobbying) of for-profit businesses.
January 26, 2010 6:31 AM | Reply | Permalink
I think that owners of private (i.e., non-publicly traded) corporations already have plenty of latitude to transfer their corporate resources to their own speech as citizens. By making that transfer, they are not implicating others unfairly in their own political speech.
January 27, 2010 2:05 AM | Reply | Permalink
Sorry to belabor the point, Jim, but I think your argument is important, so I'm still trying to clarify exactly what you're claiming: Are you saying that organizations cannot engage in political speech at all because they might "unfairly implicate" people associated with the organization in their speech? Or is it okay for organizations to engage in political speech if (1) they have some mechanism for ensuring that their natural-person "members" or "owners" (however those terms might be defined legally) approve of the political speech or (2) if they have been constituted specifically to engage in political speech, so that the organization's natural person members (or the natural-person owners of the organization's corporate members if the organization has corporate members) know from the moment they join the organization that they are associating themselves with the organization's political statements? The first approach--which would make all organizational speech unprotected--feels too heavy handed to me. The second approach is less heavy handed, but seems rather complex and maybe, in the end, easy to "game" and therefore ineffective.
I'm not trying to be contentious here -- just trying to get to a level of precision that I think would be necessary to make a legal argument successfully. (Although I'm not sure this Supreme Court cares about the argument--the majority, I'm afraid, is much more interested in helping its friends in the corporate world do whatever they want to do.)
January 27, 2010 7:59 AM | Reply | Permalink
I think that the criteria here are accountability (to members) and transparency, ON TOP of the key criterion that the association probably has to be non-profit in all but a few delimited cases (which we, the people, do have the right to delimit.)
By accountability, yes, I think that the members have to understand that they gave their money or support to the organization because they approved of its general political messages and that they would be consulted on new departures or changes in messaging: No "taxation" without representation! No money without agreement. Also, the donors to these organizations should be disclosed -- something Clarence Thomas alone opposes because the thinks they'd be harassed. (What he doesn't seem to know is that all public speakers in a democracy face that challenge, and that speaking up always requires public courage.)
In today's Wall St Journal, Yale Law Prof Bruce Ackerman and Congressman David Wu call for a $50 tax credit for every American to contribute to advertising of his or her choice on behalf of any candidate -- just like what corporations enjoy, thanks to the privileges we give them to amass wealth. In the Washington Post on Tuesday, Ackerman and Ian Ayers (also of Yale Law School), called for a change in the law to forbid negative advertising against candidates by corporations that have government contracts, something Ackerman and Ayers contend would still be very constitutional, because the Court has let stand the prohibition on positive campaigning for any candidates by corporations that have govt. contracts.
January 27, 2010 10:28 AM | Reply | Permalink
Thanks for the clarification Jim. For public companies, I wonder if some of the accountability and transparency you are looking for might be easiest to enforce via the SEC? That might be an easier path to regulation than by regulating "speech." Maybe public corps should be required to disclose in their annual reports all political activity (campaign contributions, ads in support of or opposition to political candidates or parties or public policies, lobbying) and get shareholder votes to approve that activity. That doesn't prevent public corporations from political activity, but it forces them to "go through hoops" to get shareholder approval.
January 27, 2010 12:38 PM | Reply | Permalink
Is it well clear and unmistakeable that these so-called Advocacy Organizations, such as the ACLU and many others are well short of the mark in their decades of so-called Civil Rights Advocacy?!
January 25, 2010 9:35 AM | Reply | Permalink
Political action is chiefly campaign spending, lobbying, and various forms of education.
If I wish to donate political money or call my Senator on the phone (lobbying), I must spend after-tax money to do so. So must every share-holder in BIG-PHARMA who cares to support his investment by defeating health-care reform's cost-cutting possibilities by keeping drug prices unreasonably high.
But BIG-PHARMA itself can spend before-tax money for political "speech" and for lobbying. And it can do so whether its share-holders would prefer to receive that money as dividends or not.
Labor unions have much less money than corporations, but all the same arguments work.
For all the reasons we all know, this is unfair and undemocratic (if you think democracy involves what people desire and not merely what big corporations desire).
In my view, no non-human-being (what we'd like to call a non-person, but cannot any more) should be allowed to take POLITICAL ACTION in the USA UNLESS IT IS A "HBPAC", that is, a voluntary organization funded ENTIRELY by contributions from human-beings (HBs) and organized specifically to take political action.
A BIG-PHARMA PAC could (in my view) properly go before Congress to argue against cheap drugs, but not BIG-PHARMA itself.
January 25, 2010 10:28 AM | Reply | Permalink
Conservative justices pretended not to, thereby violating the Court's and the republic's most basic principles. So did the Emperor Augustus, who choose Car transporters to have his car moved on time for the meeting. And he also permitted Romans to keep going to hold elections with "all the wild inconveniences of democracy" even as he and many more drained the fading republic's offices of power and honor.
June 25, 2010 12:05 PM | Reply | Permalink
Nothing in campaign-finance laws that the Court is eviscerating ever really barred big car transport business from inundating us with its "speech" and Congress with its lobbyists. This is a coup against something else.
July 8, 2010 12:15 AM | Reply | Permalink
It must be a great stuff for corporate speeches!
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That might be an easier path to regulation than by regulating "speech." Maybe public corps should be required to disclose in their annual reports all political activity (campaign contributions, ads in support of or opposition to political candidates or parties or public policies, lobbying) and get shareholder votes to approve that activity. That doesn't prevent public corporations from political activity, but it forces them to "go through hoops" to get shareholder approval. take a look at the maryland mortgage rates
February 2, 2011 7:34 PM | Reply | Permalink
That might be an easier path to regulation than by regulating "speech." Maybe public corps should be required to disclose in their annual reports all political activity (campaign contributions, ads in support of or opposition to political candidates or parties or public policies, lobbying) and get shareholder votes to approve that activity.
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Maybe not, but the bigger danger is that debate among citizens is being skewed and drowned by simulated voices of non-corporeal (often non-American) entities that can't be swayed by debate, as citizens sometimes can, to rise above their bottom lines occupational safety program
February 12, 2011 3:39 PM | Reply | Permalink
Thanks The First Amendment wasn't written to protect business corporations -- a fact that's only confirmed by its specific exemption of "the press" from regulation of speech. Other corporations are fair game. Citizens can speak for business interests anytime. ergonomics certification
February 12, 2011 3:42 PM | Reply | Permalink
The First Amendment wasn't written to protect business corporations -- a fact that's only confirmed by its specific exemption of "the press" from regulation of speech. Other corporations are fair game. Citizens can speak for business interests anytime. So can corporations' paid voice-overs - when we, who created them, allow it. healthcare information technology
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