Here is Justice Stevens' core argument against his five colleagues on the U.S. Supreme Court, each of who believes corporations are legally equivalent to citizens, as laid out in the dissenting opinion in Thursday's ruling on Citizens United vs the Federal Election Commission.
The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its "identity" as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
I'd call that one of the truths that reasonable people hold to be "self evident," wouldn't you?
- Log in to post comments
Just so I am clear on your position of the 1st Amendment, you think it would be Constitutional for a state or the federal government to pass a law criminalizing corporate criticism of government practices. Thus if the ACLU criticized a government practice, it would be Constitutional for the ACLU to be fined and the ACLU spokesperson who criticized the government to be imprisoned.
I personally would not find it Constitutional for the government to be able to restrict corporate speech that way. Remember that many advocacy groups are incorporated (usualy as non profit corporations).
Right on, man!
If corporations are people, we should eliminate the middleman and just elect a corporation to public office.
If corporations are people, then foreign companies shouldn't be allowed into the country without first going through immigration.
If corporations are people, then we should we bar multinational corporations from meddling in US politics since they have a conflict of interest.
If corporations are people, then ownership of a corporation is slavery and mergers are marriages.
If corporations are people, they darned well should pay personal income tax.
First Amendment analogy fail: the ACLU spokesperson is, of course, a person, and therefore falls within our Founding Fathers' understanding of the First Amendment's reach.
Note also, Mike, that the First Amendment is very specific as to when free speech applies to an entity that is not a person: The Press.
In the old supreme court case Santa Clara vs. Southern Pacific, the court "determined" that a corporation was the equivalent of a person (1890s?, I think). Actually there was no ruling on this subject, just a mention by one of the judges, and his words were recorded by a clerk. So the whole deal is based on a false premise: the original "ruling" was nothing of the sort.
dhogaza
"First Amendment analogy fail: the ACLU spokesperson is, of course, a person, and therefore falls within our Founding Fathers' understanding of the First Amendment's reach."
So what you are saying is similar to what the recent ruling said. Corporations, such as the ACLU, are free to pay people to speak for them as much as they want. Whether that is through paying a spokesperson, paying a person to create a documentary, paying a person to produce a television ad or paying a person to print up materials.
Roland
"Note also, Mike, that the First Amendment is very specific as to when free speech applies to an entity that is not a person: The Press."
I know the modern use of the phrase "The Press" refers to an entire industry of media communications. Do you have any evidence that such usage of the word was in place 200 years ago? according to at least one legal expert, no such usage exits.
http://volokh.com/2010/01/21/lessened-corporate-first-amendment-rights-…
"But beyond this, Justice Stevens simply seems to assume that âthe pressâ refers to an industry â consider Justice Stevensâ reference to âone type of corporation, those that are part of the pressâ â rather than a technology. Why should we believe that this is so?
After all, the presses in the Framing era were used not just by professional newspaper publishers. They were used by book authors, by pamphleteers, and by leafleters, for whom public commentary was a sideline to their normal lines of business. They were used by politicians who wrote articles for newspapers. I know of no evidence that the âliberty of the pressâ was seen as excluding those speakers, and covering only professional newspapermen.
And I know of some evidence to the contrary. "
I don't know exactly where the ACLU fits as an organization wrt it's rights to political speech but there are many organization that are legally limited in what type of political statements they can make. For example, I know that CFI (the Center For Inquiry - a secular humanist organization) can not make endorsements of political candidates. I think that this applies to Churches as well.
Mike- This week's decision had to do specifically with corporations participating in the electoral process (endorsing or denouncing a particular candidate or a particular position on a ballot issue). Your hypothetical seems to ask whether or not corporations have any freedom of speech whatsoever, which is a good but different question.
Most people would agree that people should be able to act collectively in certain ways, including forming corporations. And corporations should probably have some of the same rights people do, such as the right to enter into contracts (I know the contract between me and my employer is important to me). But the question of whether corporations should have the right to free speech in elections is a very different question than that of whether they should ever have speech rights.
Peter,
I don't think that you can separate the questions in that manner. If "free speech" is to mean anything as a right, it must include the ability to speak out during the electoral process.
Nobody but those actually doing the buying of influence like how money affects our democracy, but we can't let our desire to reduce that effect make things worse. I can imagine two ways campaign finance could get worse than it is now:
1) Say that lots of money continues to be spent, but loopholes in the rules make it harder to find out who's spending money on which candidates and causes. This is one of the criticisms of McCain-Feingold, btw. (I don't know to what extent it is true, but it is definitely something to be concerned about.)
And/or
2) some entities find ways around the laws, but others don't. Perhaps lawmakers in power find ways of rigging the rules to allow the groups or corporations that tend to support them to continue spending huge amounts on campaigns, while placing limits on those that support the opposition.
Money distorts the political process in the U.S., but as bad as it is, at least there's a level playing field as far as the rules go.
jdhuey,
I'm not positive, but I believe the organizations that have limits on their ability to speak for or against candidates are restricted in that way because they are listed as charitable organizations for purposes of determining their specific tax exempt status. On the other hand, a group like the ACLU is most definitely an advocacy group whose purpose includes being involved in the political process, so they shouldn't be limited in how they can speak during campaigns, IMO.
Three things. First, I seem to recall that there is a past history by the Court of conflating "money" with "speech". That is, spending money is "speech". Do I recall that correctly?
Second, by the logic of the Court, would corporations have the constitutional right to bear arms?
Third, would it be reasonable or even legal to (for example) restrict the ability to contribute money to a political candidate or ballot measure, or to endorse a political candidate or ballot measure, to only those entities that can vote for said candidate or measure? That would seem to eliminate both corporations, unions, churches, and foreign entities. Such a restriction might still allow things like PACs, which would allow individual citizens to pool their monies for an explicit single political purpose. Any entity could continue to say anything they want, including criticism of the government or government policies. They just couldn't advocate for or against a candidate for office, or for or against a measure on a ballot. Does that sound workable? Or is that what was just struck down?
That's not correct. They can do so - but they have to give up their status as 501(3)c not-for-profit corporations (for organizations) and the equivalent for churches if they do so.
You can form a regular, non-tax-exempt corporation to take and spend donations and endorse political candidates, etc. The donations people make are not tax deductible in this case.
A variety of non-profits take this approach, they have a non-profit for normal operations and a non-tax exempt for political action.
David S - in many cases corporations ARE people or a person. In all cases, they ARE an assembly of people. In the case of MOST businesses by far in the U.S a corporation is one, two, three, maybe 5 people. In our current litigious society (thanks Democrats!, it is necessary for people to incorporate themselves whether it be a s-corp or llc or tenant in common etc to be protected from the trial lawyers on the prowl. In your world, these small 1 to 5 person "Corporations" should not have a say when they collectively employ the majority of americans. Sorry to burst your predictable narrow-minded bubble.
The libtard beatdown backlash continues in America.....Thanks Barry! Go Barry Go! Go Barry Go!
p.s. UN climate expert: "...there could be even more errors in our previous reports than we know. We just don't know at this point"
BWAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
If you care the entire opinion and objection can be read at:
http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
While I think the massive influx of corporate money will harm the political process, Justice Kennedy makes a strong argument for the decision of the court. Justice Stevens objection is mostly of the "ought to be" and "has been for a long time", without directly addressing any of Justice Kennedy's arguments.
UN scientist admits unverified data used for politics...
India, China won't sign Copenhagen Accord...
Scientists using 'selective temperature data'...
PEW: Global warming ranks dead last as concern for Americans...
Just let it go, man. Cuz it's gone. Go save a titmouse or hug a tree or something. Or maybe invent another crisis that you will be wringing your hands over whlie trying to save humanity. heh heh
http://people-press.org/report/584/policy-priorities-2010.
Strongest winter storm in at least 140 years whallops Southwest U.S.
http://www.wunderground.com/blog/JeffMasters/comment.html?entrynum=1418
So this is the effect it had up here...Tide surge wallops West Seattle pump stations
http://www.westseattleherald.com/2010/01/20/news/tide-surge-wallops-wes…
Wastewater Treatment Division crews responding to the overflow alert reported that the tide was the highest they'd ever seen near the pump station.
Oh and there also this...
Maximum height of extreme waves up dramatically in Pacific Northwest
http://www.scienceblog.com/cms/maximum-height-extreme-waves-dramaticall…
...assessment concludes that the highest waves may be as much as 46 feet, up from estimates of only 33 feet that were made as recently as 1996, and a 40 percent increase....wave height could actually exceed 55 feet,