Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Glenn Greenwald does his usual brilliant job of analyzing the Supreme Court ruling in Citizens United. He punctures, as I attempted to do, the astonishingly overwrought arguments being used against the decision about how this is the coming of corporate fascism and now big business will have unlimited influence in politics -- as if they didn't already.
Here he makes essentially the same argument I made, only much more eloquently:
I'm also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don't see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: "banks own" the Congress). Corporations find endless ways to circumvent current restrictions -- their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold -- and while this decision will make things marginally worse, I can't imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical. There's not much room for our corporatist political system to get more corporatist. Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday's issuance of this ruling?
If you did believe that corporate influence was limited in any meaningful way earlier this week before this ruling, I've got a bridge to sell you. Does anyone really think that Monsanto or Dow Chemical or General Dynamics sat around during last year's election thinking, "Boy, we'd really like to spend millions of dollars to influence this election and make sure that candidates that will do our bidding get elected, but it's just so much trouble to set up a PAC or a 527 or give money to a chamber of commerce or an industry trade group, none of which have any limits on how much they can spend?"
Of course not. They did spend those millions of dollars on behalf of those candidates that will do their bidding, they just did it through a 527 called Americans for Clean Water and Fluffy Bunnies or Patriots for American Values. Bear in mind that all of those pro-corporate bills that passed during the Clinton and Bush years took place with all of those alleged restrictions in place.
The fact is that those laws were never intended to protect our legislators against the influence of corporate money; why in the world would those legislators who benefit from that money voluntarily kill the golden goose? No, those laws were only intended to give the illusion that Congress was preventing the influence of corporate money. It was a con from the start.
He also debunks the pragmatic political argument:
I'm even more unpersuaded by the argument -- seen in today's New York Times Editorial -- that this decision will "ensure that Republican candidates will be at an enormous advantage in future elections." What evidence is there for that? Over the past five years, corporate money has poured far more into the coffers of the Democratic Party than the GOP -- and far more into Obama's campaign coffers than McCain's (especially from Wall Street). If anything, unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties (and unlimited union spending, though dwarfed by corporate spending, will obviously benefit Democrats more).
Exactly right.
Politics
Comments
Ed states:
While I do not know the history of the development of the McCain - Feingold bill, I wouldn't be surprised to learn that certain interests insured the outs needed to continue to influence the public square. However it's my impression that Sen. Feingold distinguishes himself as someone with high standards who does his best to achieve policy results consistent with those standards. Does anyone have any perspective regarding Sen. Feingold's take on the results of the bill who bears his name? Not just the SCOTUS ruling but more importantly its effects when it was the law of the land.
Posted by: Michael Heath | January 25, 2010 9:44 AM
I think members of congress should enact a new law that requires congress members to display the logos of any corporation or organization that donates more than $5,000 to their campaign.
I enjoy watching golf and think it would be more interesting to see the members of Congress debate while displaying their aliegence to their owners while armed with a 9-iron. C-Span could gain a lot of viewers with a new reality show... Perhaps Elin Woods could be the show's host?
Posted by: Audrey | January 25, 2010 10:03 AM
I'm bothered by this argument that since the system is broken anyway, a Supreme Court sentence legally legitimizing the brokenness leaves us no worse off.
It's a matter of principle. Principle, remember that concept?
Posted by: mikka | January 25, 2010 10:19 AM
I'd like to see a crawl on CSPAN that lists the campaign contributions to the person speaking, listed by percentage of the total that the speaker received. That would make CSPAN interesting.
Posted by: Walt | January 25, 2010 10:23 AM
I really don't see how things can get much worse ...
Talk about your Famous Last Words.
Can anyone think of any other statement more likely to anger all the gods?
Please re-visit this situation in November and let's review what sly innovations unfettered Corporate America™ has introduced post-Citizens United.
Posted by: Pierce R. Butler | January 25, 2010 10:40 AM
The ruling may not make the problem of corporate influence that much worse than it already is. However, for people who would like to see movement in the other direction, this ruling is, in a sense, piling on to the status quo and deeply disappointing in that respect.
Posted by: JT Horrorshow | January 25, 2010 10:44 AM
mikka @ 3 stated:
I think the majority has an arguable case and their case can stand on principle. As a matter of policy I object, but I can't concede it's inarguably unconstitutional.
Certainly there are times when a majority position is unconscionable; I think Exxon Shipping Co. v. Baker is such a case where the Supremes continued the theft of what is the right of juries away regarding their right to establish punitive damages. However the court does have an obligation to defend rights from an encroachment of government power and a court who tends to defend speech rights is better than one who doesn't. I happen to concur with the minority in Citizens United since I think the superior rights of the people should prevail over the rights of entities on this matter, however I can't say the majority failed to stand on principle.
Posted by: Michael Heath | January 25, 2010 11:02 AM
I don't think the problem is that corporations will consistently buy victories for the Republicans. As stated, they give just as much to the Democrats. The problem is that both the Dems and Reps are bought and owned. It doesn't really matter whether it's a Dem or a Rep. who kills environmental protections or health care or refuses to regulate those same companies. The point is whether the biggest companies can force their agenda on the rest of us.
The argument here, is that they already can and do, so the new ruling won't change much. I certainly agree with the first part of that statement, but I'm not sure about the second.
Posted by: kathy Orlinsky | January 25, 2010 11:36 AM
Oh, hell, let me try another angle. Let's establish a lot more rules regulating those corporations, then they won't have any incentive to try to buy politicians. Yeah, there's some unassailable logic.
Hm
Posted by: James Hanley | January 25, 2010 12:29 PM
Michael Heath said:
I guess for those of us who find this ruling to be only the most recent of a historical series which have been, perhaps, the most instrumental agents of the destruction of the Republic envisioned by our Founding fathers, the matter of whether this decision is "inarguably constitutional" is dependent on whether the original case precedents are legitimate, and whether the decision would be consistent with the Founder's intent.
Thomas Hartmann argues forcefully that the answer to both issues would be a resounding "No!" in at least one book and several articles he has published, including this one here, Published on Friday, December 11, 2002 by CommonDreams.org.
Hartmann makes some astounding charges, bolstered with some discovery of relevant papers in the National archives. That:
As for the Founder's intent, Hartmann documents the Founders visceral distrust of corporations, which certainly had no rights normally ascribed to human beings, and were very restricted entities back then:
Corporations, IIRC, in most states, were not allowed to lobby, contribute money to campaigns, or even allowed to diversify. But the Robber Barons were pressing hard to overturn these principles. Hartmann quotes Lincoln, who perhaps said it best:
I wonder if the quasi-illegal origins of corporate personhood were argued in Ed's above-referenced case, and whether Hartmann's analysis is persuasive enough to engender a test case to reverse 1886 Santa Clara County v. Southern Pacific Railroad.
Posted by: Gingerbaker | January 25, 2010 12:53 PM
I agree with Pierce. Hell yes I can imagine it getting worse! I'm sympathetic to Greenwald's 1st amendment absolutism, but I think he's completely wrong on that point. That kind of thinking gave the 2000 election to Bush -- the Supreme Court wouldn't have had a say without the effect of the "both parties are equally corporate and evil" bloc. And even if corporations give to both parties: (1) yes, they hedge their bets, but there's no question that Republican values are more in line with corporate interests, and (2) either way it will favor the more corporate wings of both parties. We have a two party system in this country, third party votes are only protest votes, and changing the parties from within will be that much harder now.
Posted by: CM | January 25, 2010 1:13 PM
What about those of us who already thought corporations were nigh-unlimited and were hoping to not have steps taken to remove the nigh?
Posted by: Rutee | January 25, 2010 1:13 PM
Gingerbaker - your whole post reads as political advocacy, not a dispassionate analysis of this ruling's constitutionality which is what I was addressing and which you blockquote.
For example, it's well known that Jefferson both envisioned a very different America than what we turned out to be and lost that fight during our founding both as a matter of policy (e.g., to Hamilton's vision) and as a matter of constitutionality (e.g., the Marshall court's rulings on corporations, long before the late-19th century rulings you reference).
It's also fairly easy to define a rather small set of factors that explain the U.S.'s great success relative to other countries in the 19th and 20th centuries; the rise of the corporation was one of them so demonizing them and making arguments too narrow to capture their true import comes off as the work of a zealous ideologue rather than someone hoping to change minds (hearts and passions, perhaps).
I'll also be the first one to argue to that all successful strategies ultimately fail given that conditions change over time. Therefore I certainly don't think we should promote policy based merely on past historical events so I have no objection to arguments this ruling will result in marginally poorer results; in fact that's why I noted that I too objected as a matter of policy. However your comment post appears to me to avoid the argument of mine that you blockquote. So if you are merely riffing off my point - great; but if you were attempting to rebut it - it's my perspective you instead avoided it.
Posted by: Michael Heath | January 25, 2010 1:26 PM
I still say that this will create a new growth business in Washington. Extortion. After providing a few examples of running politicians out of office who don't play along just the dropped threat will be enough.
Posted by: Jim S | January 25, 2010 1:36 PM
I have a question for the legal minds reading:
If a corporation is a 'person' with all the 1st Amendment rights of free speech, then how would such a 'person' be affected by the 13th Amendment?
OK, I have two questions:
Has such a case ever been considered?
Posted by: Somerville | January 25, 2010 2:09 PM
A third question:
Who would have standing in a case alleging slavery with a corporation being the enslaved?
Posted by: Somerville | January 25, 2010 2:11 PM
if money-speech then how is bribery a crime?
Posted by: lauram | January 25, 2010 2:25 PM
Ed, I'll concede that in practice this ruling makes little difference to the impact of corporate money on politics. What concerns me is that this decision overturns rulings which limited such influence by law, if not in practice. This ruling troubles me in that we now have the SC saying that there's no need even to attempt to curtail corporate influence, since it's now "legal". I hate to say it, but all fascist regimes' actions were "legal" because they passed laws and had courts to sustain their activities distasteful as they may have been to outsiders.
Posted by: Grumpy | January 25, 2010 2:37 PM
lauram @17,
If speech = speech, then how is threatening someone's life a crime?
Posted by: James Hanley | January 25, 2010 2:38 PM
Exactly. The very fact that we've always asserted some controls until now, however leaky, implies an overall discomfort with might=right. It has made corporations "speak" in at least an indirect manner. It has probably protected the bottom of the corporate pyramids (all the lackeys) from some coercion to kick in, toe the line, stifle their own viewpoints.
Posted by: Diane G. | January 25, 2010 2:49 PM
This is why I'm surprised that, despite all the Democrat claims that they will "clean up congress", they haven't even attempted to put on a little show. It's as if the Democrats don't even care to perpetuate the myth that they're not in the pockets of the mega corporations - or did they figure that people would have a hard time swallowing the lies after Obama's bailouts?
Posted by: MadScientist | January 25, 2010 3:01 PM
So, let me get this straight. Everyone thinks its a bad idea for the big kid to put his hand in the cookie jar. It's currently against to rules to touch the cookie jar. Everyone knows that the kid puts his hand in the cookie jar anyway, but most of the time he tries to hide it and at least tries to look innocent. Occassionally the kid gets too cocky and actually gets caught with his hand in the cookie jar, and sometimes gets his hand slapped. The other kids notice this. Now, SCOTUS says it is perfectly okay for the big kid to put his hand in the cookie jar, and you aren't allowed to do anything about it. The kid can take as many cookies as he wants, and no one is allowed to say boo.
Does anyone think this is a good thing? Ed, do you really think this will not change anything?
Posted by: Scott | January 25, 2010 3:21 PM
In an update to his article Greenwald brings up a point that was raised here in another thread:
But aren't "persons" implied? After all, what other beings besides people ("persons") have the power of speech? (No, trained primates like Koko the gorilla don't count, smart-alecs. There was no Koko in the 18th century anyway. :) )
A corporation is not a group of people brought together for anything besides the production of goods and/or services to generate profits. Employees, stockholders, and executives do not hold or advocate any agreed upon position on political or policy issues, unlike other 'non corporate assemblies' like, say, the NRA, ACLU, or trade unions. I do not join a corporation as an employee in order to make my voice heard on political issues relevant to the corporation. I join them to exchange my labor for money and hopefully gain some additional intangible job satisfaction thereby. Period. Similarly, I only join a corporation as a stockholder to get a return on investment. I do not thereby automatically subscribe to every or even most public policy positions the Board and/or executives support.
Removing corporate personhood concerning political rights by Constitutional amendment will not deprive any individuals -- actual persons -- of the right to advocate for the advancement of corporate-friendly policies. Nothing would prevent the formation of, say, "Plutocrats for Profits" to advocate pro-corporate policies as a voluntary association and to voluntarily contribute their own money (not corporate money) to finance their activities and contribute to politicians. As I like to say, as long as it's "on their own time and on their own dime." Just like the rest of us.
Am I missing something?
Posted by: bcoppola | January 25, 2010 3:56 PM
Ack - I meant to begin the 3rd paragraph (that starts with "A corporation is not a group of people..." with:
Elsewhere, it's been said that a corporation is simply a group of people brought together for a common purpose. However, a corporation is not a group of people (etc.)..." Makes more sense, I hope.
Man, I'm rusty at expository writing.
Posted by: bcoppola | January 25, 2010 4:02 PM
Michael @#1,
From what I've read, don't live in Wisconsin anymore, Feingold is pretty angry about the decision. I found a direct commentary in Politico:
http://www.politico.com/news/stories/0110/31810.html
I have some family who are still in Wisconsin who suggest that this is a pretty accurate assessment of his position based upon what they've seen in the local media. I know he's a pretty solid advocate for campaign finance reform. He actually ran for reelection based upon the more strict rules that were gutted into becoming McCain-Feingold. Most of his actual comments seem to be of the gloom and doom variety. I'm really not certain why this is such a huge issue when they could simply use PACs and hide their funding. In fact, if anything, forcing them to openly state who is funding which commercials could be seen as a positive.
Personally I would argue that corporations, unions, and other large organizations should be barred from funding campaigns, contributing, or participating in elections. I've always disagreed with the corporation as a person argument.
Posted by: dogmeatib | January 25, 2010 4:23 PM
Of course, since there are still laws in place that require an open accounting of such spending, the most practical solution is for a campaign to "out" their opponent's donor list and amounts.
Candidate X was supported by $5 million from Dow Chemical Company - is that a candidate that YOU want fighting for YOU?
Counter-advertising is the best way to go.
I predict the death of Cialis ads during campaign season. There won't be enough spots to sell.
Posted by: middlekk | January 25, 2010 4:38 PM
Michael Heath said:
The decision is based on precedent, of course, and is therefore on firm ground. If, that is, one simply accepts that the original precedent case was decided in an above-board manner. Hartmann claims it was not, that it was not based on proper procedure and is antithetical to Constitutional principles espoused by the Founders as well as prevailing sentiment at the time. Indeed, he describes it as a scandal.
I don't know why you reading all that sort of thing into my post. It's not as if I am against free enterprise, and corporations would certainly be a part of that. What I am against, however, is exactly what Lincoln, Jefferson, Madison, Jackson, Cleveland, Roosevelt and Van Buren, in Hartmann's piece, were warning the American people about and what we are suffering under today - an oligarchy.
The roots of this accumulation of power by the wealthy few can be traced back to this case. Whether this founding case can be correctly identified as a tainted tree is, to me, a far more interesting and useful exercise than merely concurring that the present day case is properly based on its (poisoned) fruit.
Yes - corporations today have free speech rights, based on case law. But should they if the initial Supreme Court decision was improperly decided? Did you read the Hartmann piece?
Posted by: Gingerbaker | January 25, 2010 4:41 PM
I guess I am naive to point out that no one is coerced by another's right to free speech. While I am all too aware of the influence of money in the current system there is a point where all the extra campaign ads, mailings and materials make little difference.
To insist that the election of a candidate is predominantly a function of the TV adds they run is demeaning to the electorate. (A popular pastime I admit.)
While a candidate that has little funding is certainly at a disadvantage to a well funded one there is no direct evidence that the better funded of two adequately funded candidates has an unfair advantage.
This argument also underestimates the ability of a free press to make distinctions between the policies and records of competing candidates.
The content of speech is still more important than the quantity.
Posted by: Lance | January 25, 2010 6:10 PM
I'm opposed to corporate personhood insofar as it means the existence of the corporation as a separate entity from shareholders and management. However, it is rather silly to suggest that speech can be banned simply because it was expressed through a corporate medium.
Tom Hartmann is a major fool.
Posted by: Three Wolf Shirt | January 25, 2010 7:27 PM
So no corporate shield? Unlimited liability for investors?
Posted by: Dr X | January 25, 2010 10:47 PM
Regarding my comment @30, suppose United airlines goes under in a big way. The employees are the owners of the corporation. Should personal assets of employees be seized if it's necessary to satisfy creditors?
Posted by: Dr X | January 25, 2010 10:55 PM
@Scott #22: Yeah, that's pretty much it - "you're all doing it, so no need to hide anymore". If people tolerate the bullshit they have now, push them that bit more to see if they'll tolerate being screwed in a more straightforward manner. I didn't read Ed as arguing that this is a good thing, I read him as stating that we're fooling ourselves if we think mega corporations don't already run the USA. Will you really feel better with the corporations screwing you behind a curtain rather than out in public? Wouldn't you rather work to remove corporate interests instead?
Posted by: MadScientist | January 26, 2010 5:41 AM
At least with the curtain you wont get done for indecent exposure.
Posted by: Matty | January 26, 2010 6:50 AM
During several of the past presidential elections, candidates (I recall Al Gore in particular) got in trouble for accepting donations from foreign persons or entities. Apparently this is against US election laws. Is this a violation of free speech? What about donations from corporations that are owned totally or in part by foreigners - like the Chinese government?
Posted by: Stuhlmann | January 26, 2010 7:43 AM
Ed seems to be taking a position similar to that of Reich in "Supercapitalism": We need to recognize that it is foolish and futile to expect suasion and regulation to really keep corporations from acting ruthlessly in their own interests. Corporations will respond only in the short term to bad PR such as citizen outrage and dog-and-pony show Congressional hearings, and regulatory agencies will inevitably be "captured" by the regulated. Reich's solution, with which I agree, is to abolish corporate personhood - more accurately, to narrowly define corporate personhood as far as Constitutional rights are concerned. Only individuals, and the non-corporate associations they form to "assemble and petition the Government" per the 1st Amendment have rights. This would return corporations to something like their original form: as purely artificial "persons" only as defined in relevant statutes for the purposes of legal liability and contracts.
Incidentally, Reich also thinks that, corporate personhood aside, that the corporate tax should be abolished; since those profits ultimately go to people via dividends etc., the individuals who recieve those profits should be taxed on that income.
Corporations are not people. Visit MoveToAmend.org. (I think I'll make this my "Carthage must be defeated" tag line - not that I think myself a Cicero. :)d )
Posted by: bcoppola | January 26, 2010 9:09 AM
I wanted to address an error that a poster made:
"unlike other 'non corporate assemblies' like, say, the NRA, ACLU, or trade unions."
The NRA and the ACLU are corporations. Many commenters think that the 1st Amendment only applies to individuals and not groups of people. I am curious at what point do groups of people officially lose their 1st Amendment protections.
At what point does the right of free speech and right of assembly diverge? Say that a state passes a law punishing group speech which criticize the actions of the state. Which of the following groups would not be protected by the 1st Amendment?
A husband and wife criticize the government by writing a letter to the editor and sign the letter as "The Smiths." This is a group of 2 people officially recognized by the state as a marriage.
A group of students leave school and begin chanting in unison (not as individuals) that a government is wrong. The students are acting as a group and the sound they make is produced in unison.
The ACLU, officially organized and recognized by the state as a corporation, criticizes the state government.
I would posit that the 1st Amendment protects all of these groups.
Posted by: Mike | January 26, 2010 9:27 AM
@36: Thank you for pointing out my error regarding the ACLU and NRA. Also, you bring up good points & something to think about.
My provisional, off-the-cuff response is: If we strip corporations of personhood by means of a Constitutional amendment, then perhaps many non-profit corporations would have to reorganize and forfeit corporate status to continue as advocacy organizations. This might be worth the tradeoff. But it's an argument worth airing.
It would not affect the 1st Amendment rights of your hypothetical husband and wife or group of students.
While I support such an amendment, I'd just be happy for now to have it widely debated beyond the lefty blogosphere.
For now, I continue to say:
Corporations are not people. Visit MoveToAmend.org
Posted by: bcoppola | January 26, 2010 11:11 AM
I think you need to be extremely careful of how you frame 'personhood', because I think it's folly to not recognize that corporations as legal entities need to be permitted to exist. They can't sign you checks, own bank accounts, or make contracts if they're not considered to exist in some form.
To be honest, I'm not sure how I'd handle it so that citizens can still participate, and can still organize, while corporations (As the word is generally understood) are left hamstrung. But I'm certain this is possible, and that it should be done.
Posted by: Rutee | January 26, 2010 7:00 PM
This thread is getting long in the tooth but...
Rutee@38: The concept of corporations as legal "persons" for the limited purposes of contract, legal liability, etc. would not be eliminated by denying corporate personhood as far as Constitutional rights goes; none of the current proposed amendments I've seen would eliminate the more narrow legal definition of personhood. AFAIK, that's how corporations were originally conceived. I and others seeking to abolish (perhaps not the best choice of words) corporate personhood simply wish to return to that original earlier and strictly limited conception of corporate personhood.
More to the point: it is absurd on the face of it to grant full human rights to fictitious "persons" that are merely creatures of law and contract. Human rights, including freedom of speech, are for humans - and for humans who assemble and organize "to petition" under the 1st Amendment. And as I've pointed out before, it seems to me that the framers didn't have to explicity limit speech to "persons" in the 1st Amendment because it is and was commonly understood that only people have the power of speech.
I also don't see why an amendment couldn't carve out an exception for advocacy groups that incorporate as non-profits for legal and convenience purposes. The simplest way would be to exclude for-profit corporations from full personhood under the Constitution. This would, I think, preserve the rights of assembly and association we have come to take for granted under the Constitution. At least one draft amendment I've seen does so.
--
Corporations are not people. Visit MoveToAmend.org
Posted by: bcoppola | January 27, 2010 9:19 AM
I have to agree with Glenn on this one. The majority seems to have gotten it right Constitutionally speaking. And personally, while I'm weary of corporate influence as well, all the apocalyptic screeds being written in the blogosphere are getting tiresome.
bcoppola@39:
What you're saying doesn't make much sense to me. You say Human rights, such as the freedom of speech, are meant for individual persons strictly speaking, but then you say those individual persons shouldn't be allowed to produce political speech from the corporate medium? So you essentially believe that, because of the TYPE of entity in question, these people shouldn't be allowed to exercise (whether individually or collectively) their right to freedom of speech from within said entity? That's awkward.
Posted by: Blaine | January 28, 2010 1:40 AM
I wanna go on record here with an early report supporting my comment # 5, courtesy of Talking Points Memo:
Posted by: Pierce R. Butler | February 5, 2010 3:36 PM
I happened upon this blog from Jonah Lehrer blog Frontal Cortex. It is an interesting coincidence that the frontal cortex is the most likely place for the Justices to have reasoned this convoluted argument. I am not so much concerned with the campaign finance problem this poses. I think they are profound enough and I agree it was understood that our congress is for sale to the highest bidder (as opposed to government contracts which go to the lowest bidder), but my concern is according civil rights to corporations (entities). The only reason corporations are treated as individuals is to provide a layer of protection for the "capital investor" who purchases stock. The barrier is to provide some protection for personal liability but make it easier for the courts to deal with issues. It also keeps someone from suing each stockholder. Corporations are not people and so have no free speech protection. You cannot call General Electric and ask the General his view point on an issue. You cannot call Mr. Citizen's United and get his personal opinion on an issue or tease out his belief about something, because Mr. Citizen United does not exist. The bill of rights was designed to protect individuals from acts like the Sedition Act, under John Adams administration. The implications of this rise above politics. I am very disappointed in a Supreme Court that is so insular as to not view the broader implications of providing civil rights to an entity.
Posted by: Bill Young | July 2, 2010 7:56 AM