Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I know a lot of liberals are very upset by yesterday's Supreme Court ruling in Citizens United v FEC, but frankly I think it's much ado about little. The standard reaction seems to be: "Oh my god, corporations can now spend tons of money to influence the outcome of elections." But I've got news for you: They already do that. They always have. And the campaign finance laws did not prevent it.
What yesterday's ruling does is allow corporations (and unions, by the way) to spend money directly from their own accounts to buy ads that explicitly argue for or against the election of a particular candidate. But they already did finance such ads, they just had to do it indirectly through the purchase of "issues ads" -- wink, wink -- by PACs, chambers of commerce, industry groups, 527s and the like.
The fact is that the campaign finance law that the court struck down was never really intended to reduce corporate influence over elections in the first place. It was designed to give the illusion of reducing corporate influence over elections. The corporate world faced a minor inconvenience at the most. They continued to spend money by the dumptruck-full, they just did it indirectly so that you had to do a ton of research to know who was really endorsing which candidate.
Frankly, it may well be better to have companies endorsing candidates directly. At least the public will know who is endorsing them. That gives them more information than a disclaimer at the end of the "issue ad" that is clearly intended to endorse a candidate. It's at least marginally better to have the ad expressly say that it was paid for by Dow Chemical rather than by "Americans for Happy Kittens and Grandmothers."
Politics
Comments
You're like the political equivalent of my mother. You always make me feel better after something bad happens.
Posted by: Brandon | January 22, 2010 9:25 AM
I think the breadth of the decision is more worrisome. If I understood the summaries I've seen (haven't read the decision yet), the majority has asserted quite strongly that corporate "persons" have the same rights as actual human persons. Even if that doesn't make much difference in this case, it may have far-reaching implications if used as precedent.
I hope I'm wrong, BTW.
Posted by: bullfighter | January 22, 2010 9:25 AM
Doesn't that mean that most of the nation's should retire sometime soon? :-)
Posted by: Umlud | January 22, 2010 9:30 AM
bullfighter: I agree. I'm guessing their next target will be truth-in-advertizing laws, truth-in-lending laws, and anything else that infringes on corporations' "free-speech" rights to lie to the public, cover up evidence of their own malfeasance, and sue their critics for violating their privacy.
Remember when Ronald Reagan nominated Ernest Lefever for some Cabinet job, and questions arose about his advocacy of "corporate free speech" -- specifically, Nestle's alleged right to use lies and manipulation to pressure African moms to use their formula instead of their own much healthier breast-milk? Expect that controversy to be given new life.
Posted by: Raging Bee | January 22, 2010 9:36 AM
Ed stated:
A local newspaper journalist writing on a tangential issue to the ruling noted that the majority upheld the prohibition for the referenced groups to contribute to a candidate's campaign. I didn't catch that in a couple of articles I read last night so I thought I'd pass that along since you'd need know that to better appreciate Ed's point.
I continue to believe the problem isn't that groups like the coal industry, the NRA, or the Sierra Club can freely advocate their positions, but instead that we are denied our right to leverage the courts and a jury trial when any one person or entity dishonestly promotes positions that knowingly causes harm or instead commits slander and libel; and where the jury sets damages. Punitive damages equaling 80% of Fox News' equity and we'd see a sudden shift in demonstrated behavior to more responsible journalism without restricting any person or group's right to advocacy.
I continue to believe one of the biggest threats to a society is the ability and increasing willingness of people and groups to lie with impunity.
Posted by: Michael Heath | January 22, 2010 9:36 AM
I agree, and I echo the concern that the next target will be truth-in-advertising laws. The distinction between "commercial speech" and other speech always seemed rather tenuous to me, and I fully expect that corporations will next go after that distinction in order to have more freedom in advertising.
Posted by: Orac | January 22, 2010 9:42 AM
Actually, come to think of it, I've always been in favor of removing all spending limits on candidates and all limits on personal donations to candidates or parties. The only caveat is that there would have to be absolutely rigorous and ironclad transparency, with reporting of all donations above a certain relatively low threshold to be placed on a government website within 24 hours of the donation. If Dow Chemical is going to donate lots of money to a candidate, for example, then let it do so completely openly, so that the candidate's opponent can point it out.
Posted by: Orac | January 22, 2010 9:45 AM
If corporations are considered to be "persons" in the context of the first Amendment, does that mean that corporations also have "freedom of religion"? And "freedom of association"?
What does that do for anti-discrimination legislation? If an individual person has the right to be a racist bigot, doesn't a corporation have the right too?
Posted by: daedalus2u | January 22, 2010 9:49 AM
Can someone point me to a decent explanation of what it means for corporations to have the rights of a person? I'm pretty sure they can't vote, get married or serve on a jury so there must be some limits. Or are those things on the list?
Posted by: Matty | January 22, 2010 9:55 AM
It's worth noting that this ruling upheld limits on contributions. Personally I'm glad about the ruling. The first amendment doesn't say "Congress shall make no law )unless the people in question happen to be organized in a certain way, then it's ok)..." The point isn't that corporations have free speech rights, whatever that means, it's that the people who comprise those corporations don't lose those rights just because of their tax/liability grouping. I wouldn't worry too much about commercial speech either - the difference between core political speech and commercial speech is well-defined in first amendment caselaw.
Rhetorical question: ScienceBlogs is organized as a corporation. Should we all have to shut up 30 days before an election? I know the law as written didn't apply to us because we writers are independent contractors, but nothing in the minority dissent indicates that congress couldn't have stuffed a sock in our collective mouth if they wanted. That's frankly worrisome, and why I believe the court reached the right decision.
Posted by: Matt Springer | January 22, 2010 9:55 AM
I am in favor of more "transparency" in the sense that rather than these pseudo-anonymous firms like "people for petroleum alternatives" (as in, alternatives to spending money on non-petroleum options).
My concern is that the lack of a spending limit now introduces a pricing war on the advertising firms. The amount of air time for commercials and ad-space remains limited, but now the supply of dollars to fill it has no limit at all.
So bingo: bidding war. The networks and local affiliates rake it in, AND eventually one of the two "sides" to a public debate, and it WON'T be the side sponsored by the corporations, will be unable to actually meet the price point.
THAT is where this decision creates a corporate oligarchy - the other side becomes silenced by the lack of ability to pay for the time.
Posted by: Joe Shelby | January 22, 2010 9:57 AM
Free speech doesn't include the right to obtain money by fraud. An individual may have the right to claim they are the widow of a Nigerian general, but as soon as the use that claim to induce people to send them money, they are committing a crime. I would think that a corporation that uses false advertising to induce people to buy a product would be in the same boat.
Posted by: JusticeLeague | January 22, 2010 9:59 AM
oops - was so busy editing my parenthetical that i never actually finished my first sentence:
I am in favor of more "transparency" in the sense that rather than these pseudo-anonymous firms like "people for petroleum alternatives" (as in, alternatives to spending money on non-petroleum options), we actually see the direct corporate sponsor of an ad.
on the other hand, if it is an unpopular position to take (or if the media ever gets serious about pointing out bullshit when it sees it...nah, that'll never happen), we may still see the pseudo-firms. It won't be to hide from government laws, but from bad public reaction.
Posted by: Joe Shelby | January 22, 2010 10:02 AM
Just what in the ruling would bring an increase in transparency? Ed seems to assume that working around the rules recently struck is the chief reason for obscuring the money trail. But there are other plenty of other reasons corporations would want to fund opinions without a clear tie to them, and lifting these restrictions doesn't in itself require more transparency.
Posted by: Russell | January 22, 2010 10:05 AM
Individuals can say whatever they want and use their own money to support whatever they want. It's different when an individual uses the corporation's money to support a candidate. As Ed pointed out, individuals already do use corporate money to support candidates and transparency is actually a good thing. However, hypothetically taking away someone's right to use corporate money for their own personal free speech isn't the same thing as taking away their individual right to free speech.
Posted by: catgirl | January 22, 2010 10:08 AM
Well, that can't be right. Newt Gingrich explained to me last night that middle-class (real) Americans have been unable to compete against the power of rich liberals; now, at long last, our good corporations will be able to come to their rescue and level the playing field.
More seriously ...
I agree, it's pretty hard to imagine corporations having any more influence than they already do. Openness is the best remedy, so that we know it's Dow Chemical hiding behind "Citizens for Sparkling Clear Water," etc. But I wonder how corporations and industry groups will weigh the benefits of giving more against the perils of being more visible in campaign finance reports? Some might prefer hiding behind those front groups to letting everyone know just how indebted Congressman Jones would be to them.
Unless ... SCOTUS suddenly discovers a right to privacy in the Constitution and strikes down campaign reporting laws?
Posted by: Scott Hanley | January 22, 2010 10:12 AM
An editorial from a number of years ago suggested that we have a system of unlimited campaign contributions, with one big limitation: the money had to go to a blind trust that would distribute the money anonymously to the intended recipient. Corporations and individuals could give any amount they wanted to any candidate or political organization, and anyone could CLAIM they gave that money, as the candidates would have no way of verifying the source. I thought this was brilliant. I wish I could remember who wrote the editorial, but I can't.
Posted by: Yort | January 22, 2010 10:17 AM
Ed and I aren't using our own money to speak here. We're using Seed Media Inc.'s servers, bandwidth, advertising, the works. We are being paid by the corporation to speak, including everyone a few days ago who endorsed their favored candidates in the Mass. election. At the whim of congress' slightly modifying the laws, under the dissent's reasoning we could face jail time with no constitutional recourse for expressing a political opinion.
Again, the constitution does not say "unless you're paid, or unless you're using funds that derive from business activity, or unless you make your speech decisions in conjunction with a board of directors using business money..." It says "congress shall make no law". It's not negotiable, and trying to fabricate severe restrictions on the most important kind of speech out of whole cloth will certainly have chilling effects.
Posted by: Matt Springer | January 22, 2010 10:19 AM
If I may be a bit condescending for a moment, I find it cutely naive that folks believe Congressmembers would ever write campaign finance laws that would hurt their own re-election chances by actually leveling the playing field.
To be less condescending, political scientists have shown that challengers nearly always lose when outspent by an incumbent, but have roughly an equal chance of winning if they can outspend the incumbent. Incumbents, however, have on-going fund-raising mechanisms and larger lists of potential donors.
So any policy that limits the total amount that can be raised--as, for example, pure public funding would do--favors the incumbent by preventing the challenger from outspending him/her.
And any policy that limits the amount you can receive from any one donor favors incumbents, because they have more donors to tap. (The best way for a challenger to raise more than an incumbent is to find one or a few very large donors.) It also promotes the rise of self-funded candidates, who don't have to worry about finding as many donors, which is why we've had a dramatic increase in the number of millionaires in Congress. If our goal is to get a government that is concerned with the needs of the average American, that's hardly the best way to go.
As concerned as we are about the amount of money in politics, we don't actually have any understanding of what an appropriate amount would be. We spend more on potato chips than we spend on elections. We spend more on dog food than on elections. The comparison is, obviously, rather random and it's not at all obvious how we should compare potato chips and elections, but we can ask ourselves, are elections more or less important than those items?
The historical evidence shows that no matter what rules we've set up, we haven't been able to keep money out of politics. It takes a surprising amount of faith to believe that we just need the right statutory language and money will finally be controlled without having the negative side-effect of favoring incumbents.
I am fully in agreement with those who have said that we need full transparency. I make no claim that it is a cure-all for what ails American politics, or even that it is likely to have very much real effect. But I do think it is the very best we can do.
Posted by: James Hanley | January 22, 2010 10:21 AM
I'm pretty sure they can't vote, get married or serve on a jury so there must be some limits.
BALDERDASH!!! MARRIAGE IN THIS COUNTRY IS WHAT IT HAS ALWAYS BEEN: BETWEEN ONE CORPORATION AND ONE POLITICIAN!!!
Posted by: FBI Regional Bureau Chief GORDON COLE!!! | January 22, 2010 10:29 AM
Matty, it does take the phrase "married to your job" to a whole new level, doesn't it.
For an interesting read on the rise of corporate personhood in the US I'd recomend Gangs of America, by Ted Nace and Unequal Protection, by Thom Hartmann. If you're just looking for a thumbnail summary, the wiki entries for Corporate Personhood Debate and Legal Person aren't bad.
Posted by: Abby Normal | January 22, 2010 10:31 AM
I'm not seeing why/how the decision would increase transparency.
This issue was addressed in a speculative post on the Prop 8/gay marriage trial going on in California.
Posted by: JuliaL | January 22, 2010 10:45 AM
I must respectfully disagree. Not a college dorm in the nation contains such polyamorous relationships.
Posted by: Scott Hanley | January 22, 2010 10:58 AM
James Hanley: If I may be a bit condescending for a moment, I find it cutely naive that folks believe Congressmembers would ever write campaign finance laws that would hurt their own re-election chances by actually leveling the playing field.
Campaign finance laws that restrict a newcomer's strongest financing source could help an incumbent, and thus be supported by (self-interested) Congresscritters. The key to getting good finance laws through Congress (if, that is, you believe in them in the first place) is to fashion a law that gives current incumbents a tactical advantage in their next election, but has the strategic effect of making the system more just.
I have no idea how to do this but maybe some smart political scientist does. I don't think its impossible though. The discussed DC-Utah vote tradeoff* demonstrates how you can fashion a system where a strategic 'loss' to some incumbents may be made more palatable with the addition of a tactical 'gain.'
*DC is given representation - a long-term strategic advantage for the Democrats - in exchange for adding a second new seat, which would go to Utah at this time but probably somewhere else in the next census.
Posted by: eric | January 22, 2010 11:02 AM
Scott @23:
That's because the politicians own nice big houses off-campus, and the corporations are in special married student housing. The beds are bigger there. (Have you ever tried fitting three people into a single bed? I've seen it done, but they didn't look comfortable.)
Posted by: Vicki | January 22, 2010 11:05 AM
I'd be worried that the SCOTUS' definietion of corporate personhood be extended to the 2nd amendment.
More seriously, it seems that with the limits being handed out left and right on citizens' standing, and the increase in corporations' 'rights', we are going backwards in terms of being able to legally hold the government (and the corporations that run it) accountable in any way.
We are heading towards the dystopian future of cyberpunk where the corps are the governments. (I would hope we could at least get Shadowrun, with magic and dragons! =P )
Posted by: FastLane | January 22, 2010 11:11 AM
Michael Waldman of the Brennan Center for Justice at NYU School of Law writing in the Washington Post:
Greg Palast on his blog
It would appear that some people have worries about increased corporate contributions to the political scene and in particular if Palast's fear is correct that this ruling means astroturf groups would no longer need to show where their money comes from. I posted this on my blog yesterday, although not as articulately as Mr Palast, about the possibility of foreign nations throwing money into the American political landscape.
Posted by: Somerville | January 22, 2010 11:17 AM
Matt Springer:
If all money and spending by corporations is "free speech" and protected by the first amendment, then how can the commerce clause have any meaning at all?
Actually, I wonder if the losing side even brought up the issue of the commerce clause giving the ability to limit corporate spending on advertising since it almost always involves money crossing a state line to the advertising firm or the network affiliate at some point, especially as technically most of these companies "exist" only in Delaware?
Posted by: Joe Shelby | January 22, 2010 11:17 AM
Corporations aren't people, and they don't have opinions or ideas. They are, of course, legal fictions.
The people who make up corporations (executives, directors, employees) do have opinions. But, when spending corporate money, they are acting in a corporate role. They are REQUIRED as part of their fiduciary duty to act only in the best interests of the shareholders - normally construed as profits and share price. They are FORBIDDEN as part of their fiduciary duty to act according to their own opinions as to the "best interests of the country."
This is why corporate money is so distorting to the political process. It isn't a question of whether the opinions of Exxon Mobil execs, directors, or employees should matter. Of course they should, but they are only free to really express those opinions when they are speaking in their role as citizens, spending their own money. When they are speaking in their corporate role, spending corporate money, their fiduciary duty precludes any speech that is not directly in the monetary interest of the corporation itself. But the political arena is supposed to be about policy and governance, not promoting private corporate profits.
Posted by: hmd | January 22, 2010 11:18 AM
Orac wrote:
First, I doubt this is true. Second, are truth in advertising laws even used in this country? The only example I can think of is they busted the makers of Enzyte, but those commercials still remain on the air today. TV commercials routinely have the most egregious distortions in them and nothing is done. I don't think our truth in advertising laws are much use as they are.
There is perhaps a legitimate concern about the "corporations as people" idea spilling over into other areas, but this ruling did not establish that idea. That equivalence has been in place since the mid 1800s; this ruling just used that already existing definition to strike down a law that gave the pretense of restricting the influence of money in politics.
Posted by: Ed Brayton | January 22, 2010 11:24 AM
My Friends,
This my be the tipping point that sends our country sliding into a kind of despotism; what this ruling allows for example, is for the Chinese, or say ARAMCO, the Saudi Oil corporation's U.S. unit, to create thousands of shell corporations that can contribute to "position" advertisements and directly to campaigns, Labor and other counter-balancers have a miniscule fraction of corporate resources. US politics will be influenced by foreign entities.
Thomas Jefferson wrote in a 1816 letter to George Logan:[9]
I hope we shall... crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.
http://en.wikipedia.org/wiki/Corporate_personhood_debate
The results are things like NAFTA's Ch.11,
http://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement#Chapter_11
The law should be that contributions to political campaigns can be from only those eligible to votea, every position ad should have the creators and the funders prominently displayed at the beginning and end of every ad.
Posted by: The Pale Scot | January 22, 2010 11:34 AM
I must respectfully disagree. Not a college dorm in the nation contains such polyamorous relationships.
YES, WELL, THAT'S WHAT COPIOUS FUNDING OF POLITICAL CAMPAIGNS BY THE LDS CHURCH GETS YOU!!!
Posted by: FBI Regional Bureau Chief GORDON COLE!!! | January 22, 2010 11:38 AM
SINCE CORPORATIONS ARE PEOPLE IN THE EYES OF THE LAW, CAN I UNDERGO SURGERY TO REASSIGN MYSELF FROM "MALE" TO "CORPORATE"? BUT ONLY IF I CAN AVOID THE INEVITABLE "DOWNSIZING"--OTHERWISE, NO DICE!!!
Posted by: FBI Regional Bureau Chief GORDON COLE!!! | January 22, 2010 11:41 AM
Posted by: Deen | January 22, 2010 12:01 PM
I have a better solution to the problem of campaign financing. I call it the "NASCAR method".
Why that name? look at any racing car and you'll see that it's covered with the logos of corporate sponsors. They throw in a chunk of change and in return they get space on what amounts to an overengineered moving billboard.
Professional golfers have sold space on their shoes so that when the camera zooms in as the golfer sets up a shot, there's the sponsor's logo!
So there's your answer:
First, outlaw all campaign contributions. None. Zero. A dime lands you in jail.
Second, give all candidates for public office the unlimited right to sell ad space- on themselves, any podium they happen to occupy, and, since the buggers invariably insist on trotting their hellspawn out for the cameras, on their relatives.The contracts could be drawn so that if the candidate is elected, he/she is required to continue bearing the ads while in office.
ONE might think that this would disadvantage private donors, but I'm sure we could find space on the candidate for a tasteful bronze plaque reading "THE MYRON H. AND ESTELLE C. HACKLESHMACKLE MEMORIAL PRESIDENTIAL CANDIDATE".
In this system there would be no need to slog through FEC filings- you could look at a politician and know at a glance exactly who owns him.
Posted by: Ktesibios | January 22, 2010 12:12 PM
Methinks Ktesibios has been watching Idiocracy lately.
(This comment brought to you by Red Bull. Red Bull give you wiiiiings!)
Posted by: Abby Normal | January 22, 2010 12:17 PM
lol, Brandon, that was my first thought, too.
Thanks for the references, Abby, I've been meaning to read up on this topic; it just seems that something went horribly wrong somewhere...
Posted by: ildi | January 22, 2010 1:30 PM
A few people have raised this, but let me ask again: how does this ruling do anything to further transparency? Does something in it deny "corporate persons" their "right" to form misleadingly-named front groups? I'm asking honestly here.
Based on what I have heard and read about it, I don't see how transparency is genuinely advanced. The oil companies (for example) will still be free to conceal their funding activities behind greenwashed facades, "citizens for responsible bunnies, sunshine, and energy" or whatever. Could someone explain how that has changed?
Posted by: Dale | January 22, 2010 1:46 PM
I'm afraid that due to the (totally ignored) issue of scale, we haven't sanctioned corporations as having personhood, we have sanctioned corporations as having gianthood. Because of technical concerns about "free-speech" we hace really been bamboozled into sanctioned a system which is getting ever closer to "all the government money can buy".
We couple this with our media system, which is all the news and opinion that money can (and does) buy, and the hill that concerned citizenry has to climb to effectively thwart the power of big money is impossibly high.
Posted by: Omega Centauri | January 22, 2010 2:14 PM
*sigh* I just wish people would be considered persons.
Posted by: Chiroptera | January 22, 2010 2:21 PM
As the embedded links seem to have sent my attempted comment of this morning to Moderation Purgatory, here it is again sans links & slightly amended:
I agree with Robert Reich in "Supercapitalism" that corporations should not have the political rights of individuals. Regulatory reform is beside the point. I support a Constitutional amendment to abolish corporate personhood as far as political rights are concerned. MoveToAmend.org is a coalition of groups that has formed to that end.
A model amendment can be seen at the Reclaim Democracy site: http://reclaimdemocracy.org/political_reform/proposed_constitutional_amendments.html
Nothing in such an amendment would prevent groups of citizens from forming advocacy organizations as we all are free to do now. But it is absurd to think that a corporation, whose primary purpose is to return profit on shareholder investment, is a "person" with the Constitutional rights of individuals. Corporations are not comprised of people unified around a political or policy agenda. Employees, stockholders, and executives will (and do) have divergent ideas about politics. Their only reason for being is to produce products and services that will generate profits. The stockholders, employees, and executives should and will only be free to pursue political ends "on their own time, on their own dime" without using corporate funds, like other citizens and voluntary citizen advocacy groups. (hmd #29 put it very well) Furthermore, multinational corporations are often owned and managed, in whole or in part, by foreign nationals who would not otherwise be eligible from contributing to US political causes and influencing policy. Why should stockholders and executives who are foreign nationals have anything to say about our domestic politics simply because they own a US-based corporation or subsidiary?
As Reich points out, a more pernicious effect of corporate personhood is that many policy disputes become, in effect, battles between rival corporate interests with citizens on the sidelines. The recent telecom policy battles between cable TV corporations lead by Comcast and the telephone co's lead by ATT are one example.
At the very least, I'd like to see the constitutional amendment idea publicly raised and widely debated even if, like the ERA of yore, it is defeated. So far that seems to be a faint hope.
Matt #18: I believe that the freedom of the press provision in the 1st Amendment answers your concern. Like the oft-seen disclaimer sez: the opinions of Ed, bcoppola, et al do not represent the views of the corporation.
Posted by: bcoppola | January 22, 2010 2:25 PM
I find it somewhat comforting to know that the Mexican drug cartels can now legally act to keep "the devil's weed" from being legalized. So much for California taking the logical solution to fixing its budget shortfall. . .
Posted by: Opus | January 22, 2010 2:25 PM
The Pale Scot wrote:
Again, I think that's really an exaggeration. Those companies already could contribute to position or issues advertising via a PAC, an industry trade group or a chamber of commerce. And yesterday's ruling did not overturn limits on contributions to campaigns (which also, by the way, do not actually prevent massive contributions from corporations to campaigns, it just makes them do it through other means). The "oh my god this is horrible" position assumes something that simply isn't true, that the campaign finance laws that were overturned actually did something to prevent the influence of corporate money in elections. But they didn't. At best, they made it slightly more difficult -- but given what is at stake, big business was more than happy to jump through a few hoops to keep their influence intact.
Posted by: Ed Brayton | January 22, 2010 3:11 PM
Clearly we are headnig towards my favoured solution.
BUYING VOTES....
yes, at the state and local and federal level, for each $5k, 10k or 20k you pay in real-estate or income taxes, you get one vote, or fraction theeeof. You can then BUY additional votes from the Treasury. maybe at the same rate.
Corporations and PACS can buy and cast votes, but the rates are higher, maybe 25, 50 and 100k? and PACs and churches are no longer 501k or whatever but get taxed at the corporate rate, and they don't get any votes for that (maybe?).
the point being that we should set the rates so that they feel they can buy enough votes to make a difference, but the money goes to the treasury instead of the media.
also, we could I guess give every current voter one vote whether they pay taxes or not.
I think I would prefer only taxpayers get to vote.
So if you are a church, and you raise 1 mill, and net 600k after expenses, pay 180k in taxes and have 420k left to by votes
Posted by: Kevin (NYC) | January 22, 2010 3:16 PM
i always thought limiting teh amount a person or entity could spend on poltical contributions. was a violation of the first amendment anyhows
Posted by: Vic Vanity | January 22, 2010 3:24 PM
"If all money and spending by corporations is "free speech" and protected by the first amendment, then how can the commerce clause have any meaning at all?"
No, we're not talking about all money and spending. That was almost unanimously upheld. We're only talking about core political speech that happens to be financed with the collective money of the corporation.
"Matt #18: I believe that the freedom of the press provision in the 1st Amendment answers your concern. Like the oft-seen disclaimer sez: the opinions of Ed, bcoppola, et al do not represent the views of the corporation."
Why should it? The bill was a blanket ban, using a press - electronic or otherwise - was no exemption. The government argued in front of the court that actual printed books could be constitutionally banned if they were paid for with corporate money. The mind reels.
Keep in mind that the whole corporate personhood argument is beside the point. Even if there were no such concept this would still have been the right decision. "Congress shall make no law" doesn't say anything about persons, it simply says that it shall make no law. Period. Not for a lone speaker on a soapbox, not for ten guys in a local club, not for a hundred thousand people collectively as a particular type of legal entity for tax and liability purposes. Free speech is far too important to chip away just because a particular speaker has a monetary advantage in reaching many people.
Posted by: Matt Springer | January 22, 2010 3:43 PM
Chiroptera FTW.
Posted by: Mr. B | January 22, 2010 4:25 PM
Can corporations run for president now? Can we look forward to President Google in '12?
Posted by: countlurkula | January 22, 2010 4:33 PM
One must be at least 35 to run for president. Google won't be eligible until the 2036 election. That's assuming the "natural born citizen" requirement can be meet. I hope they’re holding on to their original long form incorporation certificate.
Posted by: Abby Normal | January 22, 2010 4:48 PM
Don't be ridiculous, countlurkula. Google is only 14 and a person must be 35 to be president. Google can't even buy smokes or beer yet.
General Electric / Microsoft 2012
Posted by: Tophe | January 22, 2010 4:50 PM
The FTC has brought thousands of cases re commercial speech, hundreds against diet companies alone. States and large cities also enforce their corresponding laws.
If you think TV is bad now, it would be a carnival show without deterrence.
http://www.ftc.gov/bcp/edu/pubs/business/adv/bus35.shtm
Jstc. Thomas previously announced in a dissent that commercial speech is no different and can't be regulated, and one can guess the other three business justices positions. Should Kennedy leave after our next teabaggin' President assumes office and Thomas II is appointed, it's on its way out. The 'established' case law only began in 1942, another Evil Precedent set post-New Deal, is vague at the edges and can be chipped away at easily, without instant abolition.
To those who think private suits alleging fraud would work, there are many ways to evade that. Bogus testimonials not scripted in any way by the company are one obvious example.
Posted by: Foggg | January 22, 2010 5:38 PM
So does that mean a corporation is a single person and that it will be limited to $2300 in contributions as per McCain-Feingold?
Posted by: Juice | January 22, 2010 7:02 PM
Analysis written by someone who actually follows the Supreme Court for a living:
Analysis: The personhood of corporations
Emphasis on what sort of legal foundation this decision strengthens that further establishes the 'personhood' of corporations, and why doing this leads to obviously bad conclusions.
Posted by: Hanspeter | January 22, 2010 7:54 PM
I'm with Orac, more or less. But I'm not particular sanguine that full transparency can be achieved. Enterprises with a strong interest in political outcomes, but who don't want their backing to be public, will create shell corporations, with addresses in places like the Bahamas, Hong Kong, or Malta to hide their donations. We're all too young to remember the robber baron era, but its existent was the genesis of the first campaign laws restricting donations a century ago. And several SCOTUS decisions since that have affirmed that. That's called precedent, something I thought the five in the majority viewed as sacred and the five in dissent viewed as nonsense.
Corporations are not the same as people and cannot have the same rights. They are creatures of the state formed under laws that grant them some very special privileges, such as limited liability and require public reporting that if required of individual citizens would be considered a violation of our rights. The last I looked, limited liability isn't mine to have unless I want to form a corporation. There are other characteristics of a corporation that are functions of their lack of personhood. To imply that some legal entity has civil rights, as the fab five on SCOTUS did, is nuts. If allowed to stand for long, this decision will allow all kinds of shell corporations owned by who knows whom set up for no reason other than to hide the source of the funds dispersed on behalf of politicians. And they will come and go faster than internet scams, but with even more corrosive consequences.
Posted by: Keanus | January 22, 2010 10:44 PM
Won't the top dogs of the corporations be the only actual power=persons who get to say anything? Now if they took a total secret ballot of every employee and then went with THAT choice, maybe it's ok... but it has the stench of a very bad rotten egg, does it not?
Posted by: Rocki talki | January 22, 2010 11:05 PM
Justice Sotomeyer was right, the whole notion of Corporations as individuals should be addressed first. If a corporation breaks an elections law, does it go to jail like an individual? Who in the corporation would be responsible? The CEO? board of directors? Who goes to jail? Nobody? Everybody?
Posted by: Irving Karchmar | January 23, 2010 10:22 AM
The notion of corporations as individuals has other Constitutional implications. For example, will they be granted the right to keep and bear arms under the Second Amendment? I don't mean that as a frivolous question: If corps are treated as equivalent to individual persons under the First Amendment, surely they are individuals under the Second.
Posted by: RBH | January 23, 2010 10:41 AM
International corporations can now play, and that's new, Ed. What China wants, China gets - and the same goes for Saudi Arabia, Israel, and even Iran. It is also not the case that a corporation is compelled to reveal itself at the end of an ad, although that's something Congress can change - and should. As things stand, foreign and domestic corporate entities can still cloak themselves in the guise of shell organizations with unfathomable nomenclature.
As things stand, in fact, Ed, Al Qaeda can fund a shell organization and weigh in on whom they might want for an American president, and all but the very few of us would even know.
I don't like it. At all.
Posted by: thenekkidtruth | January 23, 2010 11:09 AM
You're obviously not an attorney. If so, you would be absolutely terrified by this decision. Anyone who thinks otherwise is either blind or naive.
Wait til the next president is an Al Queda operative or one supported by Communist China. Sure, the support will come via an innocuous sounding name like Citizens for America. We won't know until it's too late.
In effect, SCOTUS has ceded control of our House, Senate, and Presidency (not to mention the Supreme Court) to any foreign or domestic corporation or government willing to pay for it.
Posted by: LPLT | January 23, 2010 11:42 AM
I'm not that concerned about the absolute amounts of money that go into campaigns- there will be highly diminishing returns after a while. The corporations and such will exploit the thing but the method will lose effectiveness/efficiency.
What does worry me is that for the next decade or so there will be cases of dumping extremely large amounts of cash on candidates at the very beginning or very end of races which will decide the outcome.
Posted by: cd | January 23, 2010 1:43 PM
The real risk is not at the Federal level but at the state and local levels. All restrictions at those levels are now thrown in doubt. So if Exxon wants a big refinery in your town, you have an equal right to spend $10 million to influence elections. I guess that is just another "no big deal" outcome.
Posted by: JS | January 23, 2010 8:54 PM
Yo, Ed, here's a bit of advice I saw via Andrew Sullivan:
As Peter Wallison argues in his great book on party finance, the real evil of American politics is that politicians must beg interest groups for the money to finance their campaigns. What we need is not “less money” and CERTAINLY not less speech – but more distance between donor and recipient. The mechanism for that is the political party. Reformers should be focusing on lifting limits on the flow of money from parties to candidates and restoring the role of the parties as the funders of campaigns. Instead of Candidate Smith asking Donor Gonzalez for money – and Donor Gonzalez asking for a favor in return – party chairman Robinson will ask thousands of donors for money on behalf of a slate of candidates, who will never know precisely whose gift was directed to them. That step will diminish corruption and the appearance of corruption.
Sounds like a decent alternative to me...
Posted by: Raging Bee | January 24, 2010 12:12 AM
I don't think it helps any to say, "Corporations do it now, anyway, just under the table."
The problem is that corporations gain more and more power, and any attempt to rein them in gets nowhere, as it comes up against this irrationality of personhood for corporations.
A corporation has one reason for existing, and that's to make a profit. I don't think an entity like that should be controlling so much of our politics and our lives, but they do.
I'm not anti-corporation. They create the goods and services I use, and I'm not about to live on a farm and grow all my own food and make my own clothes, etc. But the corporations have too much power, and we need to restore some balance.
Posted by: Margie Hammet | January 24, 2010 3:15 AM
Raging Bee,
I agree with you and Andrew Sullivan. Such a proposal would also help with our breakdown in party unity that has done so much to undermine reasoned political debate in the U.S.
Posted by: James Hanley | January 25, 2010 9:30 AM
Joe Shelby wrote: "So bingo: bidding war. The networks and local affiliates rake it in, AND eventually one of the two "sides" to a public debate, and it WON'T be the side sponsored by the corporations, will be unable to actually meet the price point.
THAT is where this decision creates a corporate oligarchy - the other side becomes silenced by the lack of ability to pay for the time."
Also, because media empires like Clear Channel will be able to offer more aggregate air time for the buck, they will rake in more bucks. That looks likely to further the concentration of media ownership — which IMO is already too concentrated.
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Posted by: kiramatali shah | February 4, 2010 3:52 AM