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Political Ideology and the Constitutionality of Campaign Finance Reform:
One of the interesting aspects about the constitutional debate over campaign finance reform is that conservatives tend to think it's unconstitutional while liberals tend to think it's lawful. It's interesting to step back and ask, why is that?

  As best I can tell, constitutional theory doesn't provide an answer. Both sides seem to make their arguments using modern cases and policy arguments. Even when self-proclaimed originalist like Justice Scalia and Justice Thomas write opinions explaining votes to strike down campaign finance laws, they generally gloss over the history pretty quickly before focusing on modern court-made legal doctrine (see, e.g., here and here).

  My best guess is that the legal positions polarize as they do for two reasons. The first is that the constitutional questions are genuinely hard. The doctrine as it comes to us is unusually murky, and there are reasonable arguments on both sides. Murky precedents and good arguments on both sides tend to trigger ideological divisions: The less traditional legal arguments provide clear answers, the more judges are likely to gravitate to their political views.

  That brings me to the second point, that the politics of campaign finance are pretty polarized. For the most part, conservatives have opposed campaign finance reform on policy grounds and liberals have favored it. If you look at the vote on McCain-Feingold in the Senate, for example, 48 of the 59 "yes" votes were Democrats, with most of the 11 GOP Yes votes coming from moderates like Specter, Chafee, Collins and Snowe. In contrast, 38 of the 41 "no" votes were Republican, with the three Demoratics voting "no" being moderates like Ben Nelson.

  So for the most part, I think the votes in campaign finance cases pretty much just track the Justices' political views, without much more explanation required. An interesting exception is Justice Kennedy, who is a very strong opponent of campaign finance laws. I tend to think his opposition is not a result of his policy views or political commitments as much as a result of his consistently robust view of the First Amendment.
common sense (www):
I would think an originalist would have a very circumscribed view of Congress' ability to regulate elections, even if the time considered was post-Civil war. Much like the Commerce Clause, I think the time to greatly restrict Congress' power on enumeration grounds has passed, and so we are left with restricting it via enumerated rights.
9.9.2009 9:02pm
Brent Peterson:
Orin,

I think you are being a little unfair to Justice Scalia. In Texas v. Johnson, for example, Scalia joined a Justice Brennan opinion that focused largely on "modern court-made legal doctrine" to justify striking down a prohibition on flag burning on First Amendment grounds. I do not think that Justice Scalia was "gravitating towards his political views" in voting to invalidate a state law that prohibited the burning of the American flag.

One some issues, at least, Justice Scalia shares Justice Kennedy's robust view of the First Amendment, even when that view conflicts with Justice Scalia's (assumed) political biases.
9.9.2009 9:06pm
Curt Fischer:
Maybe this issue is not directly related to political ideology, but merely serves as yet another front on never-ending battle between conservatives and liberals.

That is, conservatives and liberals like to argue with each other, and to agree with their own team members. That fact is sufficient to turn any issue into a partisan one, given enough time for the sides to sort themselves out.
9.9.2009 9:06pm
MR:
Couldn't it be that liberals tend to have an inherent distrust of corporations, while conservatives are more willing to give them space to work? Seems to me like the real issue in Citizens United is whether we can trust corporations with the same political powers (and responsibilites) as "real people".
9.9.2009 9:20pm
J. Aldridge:
It's interesting to step back and ask, why is that?

Because the court has never properly interpreted the First Amendment in the last 60 years is why. It's whatever you want it to mean!
9.9.2009 9:20pm
Gov98 (mail):
Yeah, um...I think for myself, as a Conservative, I oppose almost all speech restriction because um...Congress shall make no law actually means Congress shall make no law. (I do see a reasonable exception for State Secrets, but that's about it...now restrictions by the states are a little different story allowing fighting words etc., I can see, as well as fire in a crowded theater...but other than that, Congress shall make no law, doesn't leave a lot of room for exceptions.
9.9.2009 9:27pm
Xanthippas (mail) (www):
Well, I think Buckley v. Valeo was wrongly decided. Though my dislike of everything that's followed as a result makes my opposition a "policy argument" I guess.
9.9.2009 9:31pm
shertaugh:
Gov98:
"Congress shall make no law, doesn't leave a lot of room for exceptions."


So if Congress (or a state) passes a law that allows for a corporation to be chartered, the legislative branch cannot limit in the enabling legislation the corporation's legal authority to act in certain way by precluding political participation?

That is, once Congress (or the states, which are subject to the 1st A) have passed a law allowing for corporations, the Congress (and states) lose the power to limit the corporation's conduct?

ORIN . . . why do Corp's have no 5th A rights against self-incrimination but retain (I think) all other individual rights except gun ownership [at least I hope that's true -- I'm not big on corporate armies, a la Blackwater, on U.S. soil]?
9.9.2009 9:36pm
John Thacker (mail):
why do Corp's have no 5th A rights against self-incrimination but retain (I think) all other individual rights except gun ownership


There's also the "administrative subpoena," which IIRC (and I might not) was originally introduced as "just for corporations" but spread to individuals. If I'm wrong, I apologize.

Justice Thomas has taken a pretty consistent position on free speech for corporations. See his very strong concurrence in 44 Liquormart.
9.9.2009 9:39pm
John Thacker (mail):
So if Congress (or a state) passes a law that allows for a corporation to be chartered, the legislative branch cannot limit in the enabling legislation the corporation's legal authority to act in certain way by precluding political participation?


If the government can preclude political participation by corporations, wouldn't that apply to corporations that run newspapers? Should all newspapers be run by individually wealthy moguls (not even co-ops)? Should the New York Times and other papers not be able to endorse candidates, or report stories that reflect badly on them in the run up to elections? I should think not.

But if you exempt corporations that run newspapers, what stops any corporation from creating a shell company to run a newspaper or other media source, as the NRA threatened to do?
9.9.2009 9:41pm
BZ:
I don't agree with your premise, Orin. If what you mean is in public debates or the media, perhaps so, but certainly not among attorneys who practice in the area. I have been a campaign finance/election law/tax-exempt advocacy lawyer for decades, and I have always worked in trail with similar attorneys from across the political spectrum.

E.g., a luncheon for the litigants after oral argument in Wisconsin Right to Life, hosted by some of the most liberal, pro-choice attorneys around, but attended by the Big Bopper himself and his right to life client (as well as me and other conservative attorneys).

E.g. 2, the ABA Tax Section's Political Organization Subcommittee has always been run by professors and professionals far to the left, but our discussions have always included conservatives of various types. And we usually have lunch together as well.

E.g. 3, the Free Speech Coalition filed a brief in CU, written by my good friends and colleagues Bill Olson (very conservative) and Mark Weinberg (very liberal). This was one of many such efforts for the FSC in a variety of cases.

I could go on, but the point is that, among those who actually look at the legal issues in great detail as a professional matter, liberals and conservatives agree on much more than might be expected after reading this post. This is not always the case (Bob Bauer and others are reliably on the side of regulation), but there are enough documented instances to rebut the premise.

So, why is that? One reason, not often discussed, is that much campaign regulation is about not letting people speak, and liberals like to let "their" people speak too.

As to why you find your split (different from mine), perhaps it has to do with the belief, much bandied about in recent briefings, that corporations will flood the political speech marketplace. Liberals tend to dislike corporations; conservatives not so much. This belief may have little to do with reality, given both the cited information about how even-handed corporations are (they always give to the incumbent, for reasons outlined during OA today), and the clear record of the number of Democratic party supporters among wealthy corporate interests these days. But there it is.
9.9.2009 9:44pm
CJColucci:
The less traditional legal arguments provide clear answers, the more judges are likely to gravitate to their political views.

If everyone simply acknowledged this common-sense observation -- which nobody here seems to dispute, or even feel bad about -- we could have shortened the Sotomayor hearings by about 80 percent.
9.9.2009 9:44pm
Serendipity:
I've been thinking about this too and I thought that perhaps if one believes that "conservatives" believe "every man for himself," and "liberals" believe, "sometimes we have to protect people from themselves or from what they are too stupid to understand," the argument is pretty easy. Support for these laws, especially on the "corporations will take over the political process," rationale basically boil down to "the general public is too stupid to discern real messages for themselves. We have to block attack ads and the like because given people's general stupidity, they might work." Liberals might support reforms based on this rationale, while conservatives might say "well, if they're that stupid, they get what they deserve."
9.9.2009 9:46pm
corneille1640 (mail) (www):

Yeah, um...I think for myself, as a Conservative, I oppose almost all speech restriction because um...Congress shall make no law actually means Congress shall make no law. (I do see a reasonable exception for State Secrets, but that's about it...

I'm inclined to agree that campaign finance laws are unwise, but there's an inherent contradiction that your comment, perhaps unwittingly illustrates. "Congress shall pass no law" means that Congress shall pass no law.....except for the exceptions.

Of course, you're just being honest: you admit exceptions when questions of safety or security are at issue, but not when it comes to political speech.
9.9.2009 9:48pm
ruuffles (mail) (www):

the three Demoratics voting "no" being moderates like Ben Nelson.

Nelson also voted in favor of the flag burning amendment, so he didn't do it on first amendment reasons. At least McConnell was consisent, voting against both BCRA and flag burning amdnemtn.
9.9.2009 9:50pm
martinned (mail) (www):

while conservatives might say "well, if they're that stupid, they we get what they we deservewant."

FIFY

But seriously: Here's a nice cartoon summing up the liberal angle. It's a "finger on the scales for the little guy" thing.
9.9.2009 9:57pm
Constantin:
It's not that hard. The law clears the field for unions and the media. That helps one side and hurts the other.
9.9.2009 10:02pm
OrinKerr:
BZ,

I'm referring to commenters who express views on this in the blogophere and in the press, professors who teach and write in the area, and judges who decide cases. I don't think I know enough about the personal policy or constitutional views of "campaign finance/election law/tax-exempt advocacy lawyers" to say. I should also add that these are only trends: There are exceptions to the rule. of course.
9.9.2009 10:02pm
Gov98 (mail):
So if Congress (or a state) passes a law that allows for a corporation to be chartered, the legislative branch cannot limit in the enabling legislation the corporation's legal authority to act in certain way by precluding political participation?

That is, once Congress (or the states, which are subject to the 1st A) have passed a law allowing for corporations, the Congress (and states) lose the power to limit the corporation's conduct?


Congress should not generally be in the corporation business, that would seem to be a state law matter, and yes, once a state creates an organization law, incorporation, LLP, GP, whatever, I do not think the government can single out one type of association over another. Something called equal protection.

Should a state government create a "religious organization" and then the feds be able (because it was a creation of the government) be able to strip it of Free Exercise or Free Speech rights? I think absolutely not. Tax-Exemption is another issue, after all, He who takes the King's Shilling...

So the short answer to your question is Yes.

I'm inclined to agree that campaign finance laws are unwise, but there's an inherent contradiction that your comment, perhaps unwittingly illustrates. "Congress shall pass no law" means that Congress shall pass no law.....except for the exceptions.

Of course, you're just being honest: you admit exceptions when questions of safety or security are at issue, but not when it comes to political speech.


Right because I think it's clear that the evil the first amendment protects against is suppression of political speech...Not say pornography, libel, slander, criminal threats, bomb scares, etc. At the same time I do not see a good reason for Congress (as opposed to a state) regulating any of those activities.
9.9.2009 10:02pm
Ari8 (mail):
It's much simpler than that: liberals want to cut off the flow of political money because they dominate the media (less so than in the past, but still), dominate academia, dominate the big law firms, dominate Hollywood, etc. The only place where conservatives can go toe to toe with them is in spending money to get their message out. Naturally, liberals want to shut this competitive venue and have a not-quite-monopoly over public discourse.
9.9.2009 10:10pm
AF:
As best I can tell, constitutional theory doesn't provide an answer.

John Hart Ely's Democracy and Distrust provides an answer for Breyer's vote, and probably Ginsburg's as well. I think that counts as a "constitutional theory."
9.9.2009 10:13pm
Tim Nuccio (mail) (www):
I think there's some truth to this post, but I still wonder what "reasonable" argument exists for restricting 1st amendment rights.

Even if such a "reasonable" argument exists, strict scrutiny ought to have no problem striking it down.

As to the public policy arguments, that's a different story. But as a matter of constitutional law, "Campaign Finance Reform" seems like as clear a case as one could ever hope for.
9.9.2009 10:14pm
Real American (mail):
liberals are much more comfortable with letting government regulate our lives (except for sexual activity) and why should political speech be any different? Their main target w/ CFR has always been corporations and "rich people" as their under the assumption that corporations and rich people are more Republican than Democrat.

They probably also think they've been unfair targets of campaign commercials they view as unfair, which is, of course, laughable (/wither on the vine...)

Liberals also tend to believe they need to protect people from themselves. They fear that voters will get the "wrong information" and thus vote Republican. Conservatives tend to believe that we should let all of the speech in and trust the people to sort it out.

CFR is a tactic used to silence political opponents. All you have to do is see who benefits from restrictions on campaign speech - academia and the media - two megaphones of liberalism that oft go unchallenged until it is too late.
9.9.2009 10:14pm
martinned (mail) (www):

Their main target w/ CFR has always been corporations and "rich people" as their under the assumption that corporations and rich people are more Republican than Democrat.

Almost. The idea is that money allows people to "shout harder", i.e. speak more loudly. That is fair enough, but there's no reason to overdo it. Moderating the ability of money to buy attention allows those with less money to be heard better. The result is a free and frank exchange of ideas; more and better speech.
9.9.2009 10:19pm
tvk:
Orin, it doesn't strike me as a very satisfactory answer. You seem to go on a circular conclusion of Q: Why do conservatives and liberals vote in different ways on campaign finance issues? A. Because they do. Sometimes positions on issues go to the definition of what makes someone liberal or conservative, such as preferences on taxation, size of government, redistribution, and government regulation of social values. But this doesn't work because very few people would define a liberal as someone who favors campaign finance regulation. Rather, the people who are identified as liberals because they favor other lefty causes (e.g. wealth redistribution) just tend to also favor campaign finance regulation. The correlation is undeniable. The reason for the correlation is the mystery.
9.9.2009 10:20pm
Constant (mail):
I think the votes in campaign finance cases pretty much just track the Justices' political views, without much more explanation required

That doesn't really answer the question. For example, commitment to the spirit and letter of the Constitution could be classified as a "political view". It's not really either-or.

Furthermore, if a vote breaks down along ideological lines, this may not mean that both sides are ignoring the Constitution. Maybe one side is in the grip of an ideology that is causing it to ignore the Constitution, while the other side isn't. While both sides have ideologies, it would actually be surprising if the two ideologies caused Constitutional blindness on precisely the same Constitutional points. It seems more likely that sometimes one, sometimes the other ideology gets in the way of clear understanding of the Constution.

As for the "murk", how much of that is the doing of two centuries of sophists trying to twist the plain meaning of the Constitution beyond recognition? If so, one side of a disagreement may be relatively free of the influence of the sophists, and the other side in the grip of it.
9.9.2009 10:23pm
OrinKerr:
tvk,

I don't see that as such a mystery: As Ari8 and some others suggest, the campaign finance reform under discussion is generally thought to hurt conservative efforts to influence elections more than help them and to help liberal efforts to influence elections more than hurt them.
9.9.2009 10:25pm
martinned (mail) (www):

Maybe one side is in the grip of an ideology that is causing it to ignore the Constitution, while the other side isn't.

Let's not forget, it's also quite possible that they're both faithful to the constitution. Sometimes the Constitution is more like the I-Ching than like an actual piece of law.
9.9.2009 10:28pm
martinned (mail) (www):

I don't see that as such a mystery: As Ari8 and some others suggest, the campaign finance reform under discussion is generally thought to hurt conservative efforts to influence elections more than help them and to help liberal efforts to influence elections more than hurt them.

But that implies a level of cynicism that I'm not seeing on either side.
9.9.2009 10:29pm
Anderson (mail):
I do not think that Justice Scalia was "gravitating towards his political views" in voting to invalidate a state law that prohibited the burning of the American flag.

Yes, but that was not a hard case, as the poverty of Stevens's and Rehnquist's dissents amply demonstrates. Only sheer prejudice made it 5-4.
9.9.2009 10:37pm
tvk:
Orin, I would buy that as applied to Austin in particular, but more broadly that is a rather questionable statement. Conservatives have plenty of avenues to get their message out (e.g. talk-radio), and Democrats these days have even better fundraising than Republicans (e.g. Obama v. McCain). It is not clear that completely unregulated campaign financing (as opposed to the narrow issue of permitting corporate campaign financing) would benefit conservatives.

And, in addition, if your cynical theory is true, it speaks in the worst possible terms of both the conservative justices and (to some lesser extent because they have precedent on their side) the liberal justices. Boiled to its essentials, I think you are saying the reason that liberals favor campaign finance is that it benefits Democrats and conservatives favor less regulation is because it benefits Republicans. That is fine for legislators and citizens. That is definitely not fine for Justices.
9.9.2009 10:44pm
Oren:



Yes, but that was not a hard case, as the poverty of Stevens's and Rehnquist's dissents amply demonstrates. Only sheer prejudice made it 5-4.

Even as a near 1A-absolutist, Steven's dissent made me quite sad. Dunno what poverty you talking about.
9.9.2009 10:45pm
SuperSkeptic:
Right, when it comes to ideology, both sides could be claiming to be following/upholding "the Constitution" (either the objectively real one or the sophists one) because they see their ideologies IN the Constitution. It's not that unreasonble; some of them are actually in there...
9.9.2009 10:52pm
martinned (mail) (www):

That is fine for legislators and citizens. That is definitely not fine for Justices.

Even for legislators and (other) citizens I would consider that not fine, at least not when the question is one of constitutional interpretation.
9.9.2009 10:54pm
Connecticut Lawyer (mail):
Oren,

How then do you explain Justice Brennan's views? I believe he subscribed to the position in Buckley that the First Amendment did not permit the Government to suppress the speech of the wealthy in order to enhance the voices of the poor. Notwithstanding Buckley, that levelling instinct is the animating principle behind the entire current framework of campaign finance law.
9.9.2009 10:57pm
Mark N. (www):

Even as a near 1A-absolutist, Steven's dissent made me quite sad. Dunno what poverty you talking about.

Perhaps poverty of legal analysis? Stevens's dissent was a good argument for why we ought to attach significant sentiment to the American flag, and perhaps rousing as a general statement of opinion. But it didn't contain a very convincing legal argument.
9.9.2009 10:58pm
Cornellian (mail):
I assumed each side took its position on campaign finance reform on the assumption that that position would benefit their side politically.
9.9.2009 10:59pm
Mark N. (www):

It's not that hard. The law clears the field for unions and the media. That helps one side and hurts the other.

The complained-of restrictions apply to labor unions as well as corporations, so if the purpose were to "clear the field for unions", they didn't do a very good job.
9.9.2009 11:01pm
OrinKerr:
tvk,

My comment said it is "generally thought" to be true; whether it is in fact true, especially in the latest political environment, is another question.
9.9.2009 11:02pm
Repeal 16-17 (mail):
Martinned said:

The result is a free and frank exchange of ideas; more and better speech.


Should any government have the authority to determine which speech is "better"?
9.9.2009 11:09pm
martinned (mail) (www):

Should any government have the authority to determine which speech is "better"?

Well, in this case I meant "better" simply as freer and more frank, and possibly even in the background as "more substantive". No content-based judgement was implied.
9.9.2009 11:36pm
einhverfr (mail) (www):
Orin is right. The NRA and ACLU are on different sides of this issue because their lawyers are used to being on right and left hand sides of issues, so the ACLU would want to uphold this as Contitutional and the NRA would want it to be declared Unconstitutional.

[/sarcasm]

I would suggest that this case much more a formalist vs pragmatist split than it is a liberal vs. conservative one. However, this also strikes me as a very difficult case. My own thinking is that we are going to see an attempt to preserve the past precedents because if the decision was possible without bringing Sotomayor in, I think that would have been done. As it is, I think the re-argument suggests that she could cast the deciding vote.
9.10.2009 12:01am
Upend, Coming:
Corporations can't vote, they can't eat, they can't die simply by operation of time.

They are a fiction.

We're arguing about giving a fiction a right under the constitution guaranteed to flesh and blood people. Flesh and blood people that fought and died to create a country.

I mean, the fact that Delaware is home to so many corporations should tell us something. We all can't live in Delaware - but it seems practically an infinite number of corporations can.

---

Scalia's biggest contention at oral argument was: think about all the single shareholder corporations! The poor mom &pop person who couldn't write a tax advantaged check through a legal shell of himself. After listening to the discussion between Scalia and Kagan I almost wish she was nominated to the SC - it would be hilarious.

But back to the point of Campaign Finance Reform. Corporations are self-interested parties because of their fiduciary duties. As such, they are essentially incapable of altruism. Who would want a government dominated by people who could not give without getting?
9.10.2009 12:22am
GatoRat:
"Congress shall make no law..."

How hard is that to understand. It doesn't provide for exceptions, it doesn't limit itself to individuals, it says "no law".

I believe the reason for this is clear; the authors of the constitution knew that not being absolute would open the door for creeping exceptions as has been proven.
9.10.2009 1:16am
Tritium (mail):
I don't think the founding fathers ever envisioned bribery to be an acceptable behavior for the legislators to be engaged in.

I believe the best approach to take with the campaign finance is to determine by what power are they authorized to legislate on such a topic. Since each house can makes the rules of their own house, and rules of government might also apply, they are restricting themselves as a rule upon all members.

Corporations aren't persons, and have no rights, the owners of the corporation have rights, but unless they gave them up to the corporation to be exercised and protected, then it should remain what it is.. Property.

People were once considered to be equal to property, and they were called slaves. What happens when you make property equal to people? Do we really want property (corporations) to have equal rights? Somehow, I don't think that's what any of the founding fathers intended.
9.10.2009 1:27am
Tritium (mail):
Freedom of speech, Freedom of Religion, Freedom of the Press, are all derived from natural rights, which do not exist in corporations. The are the offspring of Government, chartered for supposedly specific purposes. The only way for a corporation to actually exercise freedom of speech, all of the part owners would have to give up their natural rights to the corporation, which I highly doubt members would be interested in such a thing.

Not to mention the principle of representatives being uninflienced by any other source other than those they represented, which used to be fundamental and well adopted, which would prevent any priviledge, contribution, favor, emolument, etc. that could influence any one of them, illegal.
9.10.2009 1:38am
einhverfr (mail) (www):
Tritium: So here are some areas where your reasoning breaks down.

I have a sole proprietorship. It is not incorporated. Presumably I could create an advertisement for a political candidate on it and put at the bottom "Proudly sponsored by [my business]."

Or better yet we have an immensely popular state senator in Olympia who always runs unopposed because everyone likes her. I could pay for an advertisement of her reminding folks to get out to vote, and put the same "Proudly sponsored by..." at the end.

Why should that be tied to the fact that I didn't incorporate my business? Why should that be allowed for an unincorporated for profit business but not a corporated one?
9.10.2009 1:47am
einhverfr (mail) (www):
(in both cases, I as a natural person, am exercising my speech, but why does the corporate form inherently matter?)
9.10.2009 1:49am
~aardvark (mail):
Whatever one may think of corporate personhood for civil litigation and civil rights, unless there is some version of full criminal liability for corporations, their legal personhood is fiction. If we can't dissolve a corporation for criminal conduct--i.e., remove it from the public sphere, as we do with convicted natural felons--how can anyone talk of giving corporations full legal personhood for individual rights? All right and no responsibilities? Sounds crazy! And since when are libertarians for corporate personhood anyway? Libertarians have always been for the rights--particularly fiscal and business rights--of natural persons. Granting corporations full legal personhood actually interferes with individual freedoms--and what kind of libertarian would support that?! (Answer: the kind of libertarian that's actually a imperialist conservative--and I mean that in the kindest possible sense. A less favorable description would call him a fascist--but that's only become DISfavorable after WWII!)

But there is another point. Orin wrote, in part:

... most of the 11 GOP Yes votes coming from moderates like Specter, Chafee, Collins and Snowe. In contrast, 38 of the 41 "no" votes were Republican, with the three Demoratics voting "no" being moderates like Ben Nelson.


Who in his right mind would ever call Chafee a "moderate"? Or, for that matter, Ben Nelson? If Nelson were a Republican, with his voting record, there is no question that he would be considered a staunch conservative. The same goes for Chafee, but in the opposite direction. You have some wiggle woorm for Specter, Collins and Snowe because they sit on the fence on so many issues, but consider what happened to Jeffers and Specter when they switched parties--they went from centrist conservative voting record to middle-of-the-pack liberal voting record. The only thing that held them back was party discipline. The same with Nighthorse-Campbell when he switched to the Right--his record immediately became more conservative. The problem is that the "moderation" is purely contextual. But let's call the spade a spade--Nelson is conservative, and the only one (aside maybe from Lieberman) who votes more with the other party than with members of his own focus. That leaves Collins and Snowe--and Snowe (or possibly even both) is about to buck the GOP on health-care reform. Even with that vote, her record is still more Republican than moderate.

We have a nearly complete polarization of the parties. If there are any "moderate" who have a substantial number of votes against their own party, you will only find a handful of Democrats in it (Pryor, Carper, Landrieu, Baucus and Conrad) and two Republicans (Snowe and Collins). Specter will eat crow at least until the primary is over, so it's hard to tell where his priorities really lie, other than self-preservation. But Nelson and Lieberman are not moderates any more than Graham and Grassley are moderates. I really wish people would stop abusing this term (that and "centrist").
9.10.2009 3:13am
~aardvark (mail):
Another point, as Orin mentions in passing, is that corporate personhood is by no means an originalist idea--nothing of the sort could have ever occurred to the Founding Fathers, as corporate personhood was not really granted until post-Reconstruction period and well into the 1890s. How can Scalia, Thomas et al. claim to be originalists and support this nonsense?!
9.10.2009 3:15am
J. Aldridge:
Freedom of speech, Freedom of Religion, Freedom of the Press, are all derived from natural rights, which do not exist in corporations.


Ya mean they had printing presses when man first learned to walk upright?
9.10.2009 3:21am
David M. Nieporent (www):
Freedom of speech, Freedom of Religion, Freedom of the Press, are all derived from natural rights, which do not exist in corporations.
So the government can pass a law making it illegal for the New York Times to criticize the president, since the New York Times is a corporation?
9.10.2009 5:55am
Brett Bellmore:

I don't think the founding fathers ever envisioned bribery to be an acceptable behavior for the legislators to be engaged in.


I don't think the founding fathers ever envisioned the government being entitled to treat my saying, "Candidate Jones is a scumbag!" as a bribe to candidate Jones' opponent. But that's the rationale behind a lot of this regulation.

As well, I'd argue that we're frequently talking extortion here, not bribery. But that's something campaign 'reformers' don't like to recognize, because they're advocating laws, and noticing that it's the people who'd write them who are the origin of the corruption they're seeking to outlaw results in too much cognitive dissonance.

But, yeah, I suppose Congress could make it an internal rule for incumbent members of Congress, that they couldn't accept campaign donations. People who are, as yet, just running for the office, would of course not be subject to such rules.

Anyway, MY position has been consistent: Whatever the policy arguments, Congress lacks any enumerated powers basis for campaign regulation. It has an enumerated power to regulate elections, but campaigns are not elections. They are speech on the topic of elections.
9.10.2009 6:07am
Tritium (mail):
einhverfr:
Why should that be tied to the fact that I didn't incorporate my business? Why should that be allowed for an unincorporated for profit business but not a corporated one?

What you do with your own time is your business, however for a campaign, wouldn't it better to allow the candidate to get elected on their own, rather than getting elected because of other peoples talent, or funding?

I'm basically stating that there's really no reason why campaigns need to have money, it's just another way for politicians to create a fancy bookcover for an altogether terrible book.

I would even suggest that opinions be banned from news commentators, it's not like it isn't difficult enough as it is to get the American public to think on their own, but with todays Opinio-matic between fox and msnbc, why not create the most positive environment for the electoral process. Seems like we actually might have effective reform that way. With opinions out of the way, reporters might actually have time to investigate.

J. Aldridge:
Ya mean they had printing presses when man first learned to walk upright?

Natural Rights, which has nothing to do with learning to walk upright. And it's difficult to exercise freedom of speech when you're not down the evolutionary chain to form speech. You're not natually blond by any chance, are you?
9.10.2009 6:10am
Brett Bellmore:
And as for corporations, the law does not permit people to incorporate. In some instances it mandates it, in many others encourages it with a very heavy hand indeed. Did you think corporations were as common as they are as a result of some kind of fad? Rather than because the law has made forming a corporation the only economically feasible or remotely safe way to get together to do things?

It's a strange notion, to my way of thinking, to say we've got these rights as individuals, but the government can essentially force us to use the corporate form to do certain things, and then make our use of that form as a basis for saying we've relinquished those rights.
9.10.2009 6:14am
Tritium (mail):
Brett Bellmore:
Whatever the policy arguments, Congress lacks any enumerated powers basis for campaign regulation. It has an enumerated power to regulate elections, but campaigns are not elections. They are speech on the topic of elections.


Well, I agree, but then again, they also have no authority to alter the Constitution, but they've gotten away with that. They also have authority to delegate legislative powers to any other body for their free exercise, nor the power to create a national for profit corporation, etc. etc. I would love to see a case challenging congressional and executive powers, and of course the authority to amend lacking the power to repeal any part, as the Will of the people is Supreme, preventing them from amending in any way contrary to the Constitution.
9.10.2009 6:20am
Tritium (mail):

It's a strange notion, to my way of thinking, to say we've got these rights as individuals, but the government can essentially force us to use the corporate form to do certain things, and then make our use of that form as a basis for saying we've relinquished those rights.


True, but a similar example would the the U.S. Constitution, restricting the states from exercising powers they would have been granted through their constitution. And bound not to by the federal since a majority of the people of the state approviing it, binds it, and the general authority then exercises it.

But because it is a natural right, it would ultimately be inviolable and couldn't be given up if you wanted to. Naturally.
9.10.2009 6:26am
/:
It has been argued that prosecution for publicly telling state secrets does not qualify as an exception to the first amendment because it relies on the effect of the speech (eg, immediate loss of strategic value) rather than the content. Thus, whatever resulting prosecution would be identical to if the person had passed copied secret documents along.

That's one way to remain true to the letter and spirit of the First Amendment, while making accountable certain actions. So the question is, if the First is taken this seriously, will the rest be taken seriously enough to prevent speech from being classified as anything but for the purposes of crime?

Of course, none of this matters, because it is not taken seriously, except as an obstacle to overcome. I am reminded of Asimov's laws.
9.10.2009 7:26am
martinned (mail) (www):

So the government can pass a law making it illegal for the New York Times to criticize the president, since the New York Times is a corporation?

While I don't see the point of making the distinction between corporations and individuals, this one doesn't fly: The law you suggest would violate the rights of the journalists who work at the New York Times.
9.10.2009 7:28am
/:
The law you suggest would violate the rights of the journalists who work at the New York Times.

It doesn't prevent them from writing outside of the NYT, either for themselves, for another corporation, or for a non-corporation entity.

Does preventing them from doing their job constitute a violation of rights?
9.10.2009 7:33am
David M. Nieporent (www):
I'm basically stating that there's really no reason why campaigns need to have money, it's just another way for politicians to create a fancy bookcover for an altogether terrible book.
First, you're confused; this issue has nothing to do with giving campaigns money. This has to do with putting an ad on television criticizing (or praising) a politician.

Second, to quote Homer's brain, "Money can be exchanged for goods and services." That's the "reason" why campaigns need to have money. Let's suppose we ban all campaign ads entirely, and require politicians to talk to the voters directly. How is the candidate supposed to get from town A to town B to campaign if he can't buy gas for his car?
9.10.2009 8:26am
martinned (mail) (www):

How is the candidate supposed to get from town A to town B to campaign if he can't buy gas for his car?

Given how low gas prices are in the US: A yard sale?
9.10.2009 9:24am
~aardvark (mail):

It doesn't prevent them from writing outside of the NYT, either for themselves, for another corporation, or for a non-corporation entity.


Apparently, there are several people hear who require hand-holding... New York Times is not merely a corporation. It is a newspaper. You do know that "Founding Fathers" had newspapers, don't you? That's why we have Freedom of the Press.

In fact, we do have considerable restrictions on newspapers as corporations. For example, if a newspaper is being run by a not-for-profit corporation, then it cannot endorse candidates, which is something that newspapers have been doing since there were elections in this country.
9.10.2009 10:01am
Aultimer:

einhverfr

Why should [political speech] be tied to the fact that I didn't incorporate my business? Why should that be allowed for an unincorporated for profit business but not a corporated one?



Because the incorporated one is a separate person, lives forever, cuts off its owners' liability and is required to act in its owners' interests.

BTW, in your hypo, you're still free to sponsor the ad individually - "Brought to you by einhverfr, proud owner of [my biz]"

I'm no liberal, but I find it quite fair and constitutional that corporations may be denied individual rights.
9.10.2009 10:10am
einhverfr (mail) (www):
Aultimer:

Because the incorporated one is a separate person, lives forever, cuts off its owners' liability and is required to act in its owners' interests.


None of those are true for single-shareholder corporations which are owned and run by the same person. A single-shareholder sub-S corp is no more a separate person than the owner, is unlikely to live beyond the original owner's desire to run the business, doesn't really shield the owner's liability (as long as it is run and owned by the same person). And suing one's own corporation where one is sole owner and CEO would create standing problems.
9.10.2009 11:03am
troll_dc2 (mail):

Another point, as Orin mentions in passing, is that corporate personhood is by no means an originalist idea--nothing of the sort could have ever occurred to the Founding Fathers, as corporate personhood was not really granted until post-Reconstruction period and well into the 1890s. How can Scalia, Thomas et al. claim to be originalists and support this nonsense?!


Does anybody want to defend the idea that a corporation is a constitutional "person"? See Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394 (1886). The Court did not hear argument on the issue but merely assumed that this was so, even before the argument, but the point is included in the Syllabus, according to Wikipedia. If this is true, is it too late to overrule this point?
9.10.2009 11:05am
Upend, Coming:
Troll - Sotomayor did speculate idly about whether the idea of corporate personhood was correct as a foundational matter. She seemed skeptical
9.10.2009 11:21am
einhverfr (mail) (www):
Tritium:

On natural rights analysis and corporations, I don't believe that such rights are fundamental but rather structural as they emerge from other social structures.

As regards these rights, we are endowed with them by the society we live in, not by some mythic figure (who is ALSO a cultural construct).

Corporations are collectives relating to human interests. A corporation like Citizens United (as much as I may disagree with them) is not run for profit but rather to conduct political advocacy. The corporation in that case then provides a form for individuals to collaborate on exercising their freedom of speech collectively in the creation of, for existence, the movie in question here, which is a collective exercise of the speech of the members.

The problem though is where one draws the line. If corporations don't have free speech rights, nor the right to petition government, then it becomes impossible for one to have a fair dialog on issues like patent reform. If corporations are given the right to create persuasive literature directed at congressmen though, what makes that different if they want to run short videos on TV advocating a cause such as patent reform, copyright law changes, support or opposition to health care reform, etc? Certainly the Wisconsin Right to Life case suggests there is a right to do this as long as no candidates are mentioned. But if you are running an ad on the eve of the election against a specific proposal of a specific candidate, how does that equate to something functionally different?
9.10.2009 11:26am
/:
~aardvark: That wasn't my point. Just because you have a (valid) point to make doesn't mean you have to assume I disagree with you or makw it in such mocking terms.
9.10.2009 11:39am
Don M. (mail):

~aardvark stated on 9/10/2009 10:01 am

...
Apparently, there are several people hear who require hand-holding... New York Times is not merely a corporation. It is a newspaper. You do know that "Founding Fathers" had newspapers, don't you? That's why we have Freedom of the Press.

In fact, we do have considerable restrictions on newspapers as corporations. For example, if a newspaper is being run by a not-for-profit corporation, then it cannot endorse candidates, which is something that newspapers have been doing since there were elections in this country.



Let me get this straight, one corporation is allowed to use its resources to state basically anything they want to based on what product they claim to produce.

So, the way to get around all of these campaign finance laws if you are a corporation is to state

"I am creating a subsidary of my corporation that is a newspaper or other media outlet. Because we only have the best interests of the public in mind, we do not wish to charge for our service of providing news and commentary of current events, and in order to assure that our customer base gets 'All the News Fit to Print, or show on TV', we have made the business decision to buy airtime on currently existing television and radio stations, and put our commentary and anlalysis in selected newspapers and magizines, by paying these traditional media outlets to help us convey the news of the day to our customer base."

Tell me, how is this different from the New York Times corporation? The only difference is that the fictional company I described above is not charging the public for their views, (as do most televison and radio stations), and is distributing their news, analysis, and editorial commentary through already existing channels, which of course, the existing channels have a right to refuse to do.

The "New York Times" is a newspaper, but the "NYT Corporation" is a corporation that attempts to turn a profit, even though that has been difficult to do for them the last couple of years.

How do we know, and for the purposes of CFR, that the news that the NYT newspaper sees fit to print, or their editorial positions, or their analysis of politicians statements are purely motivated by a desire to inform the people? We do not, and necessarily cannot know that, since we cannot read the minds of the editors, reporters or the Board of Directors of the NYT Corporation to discern what their motives are. We can guess, but I'd be willing to bet my reading of their motives and motivations are likely to be at odds with many other peoples. Who is correct?

So, we can all admit that the NYT may have other agendas than a dispassionate recital of the days events.

So again, tell me why the NYT Corporation should be treated any differently than "Corporation X" whose product is not a "newspaper". Also, who determines what a "newspaper" is? Circulation, form (size, shape, etc.), or just a "traditional" newspaper, meaning one already in existence.

What if the NRA or the NAACP, or another interest group decides to print a "newspaper" or run television "news" in the traditional media outlets how they are not the "press"?

Does the NYT Corporation have any other interests besides printing of newspapers?

According to the Yahoo! finance website:

The New York Times Company operates as a diversified media company in the United States. It operates in two segments, News Media and About Group. The News Media segment comprises The New York Times Media Group consisting of The New York Times; NYTimes.com; the International Herald Tribune; IHT.com; and a New York City radio station, WQXR-FM. This segment also comprises the New England Media Group, which includes The Boston Globe, Boston.com, and the Worcester Telegram &Gazette; and the Regional Media Group consisting of 15 daily newspapers in Alabama, California, Florida, Louisiana, North Carolina, and South Carolina, as well as related print publication businesses. The About Group segment consists of the Web sites of About.com, ConsumerSearch.com, UCompareHealthCare.com, and Caloriecount.about.com. The company also holds interest in a Canadian newsprint company and a supercalendered paper manufacturing partnership in Maine, as well as publishes a free daily newspaper in the greater Boston area. In addition, The New York Times Company operates an online advertising network that sells targeted display advertising onto local newspaper and other Web sites; owns Boston Red Sox, Fenway Park, and adjacent real estate properties; operates a regional cable sports network that televises the Red Sox game; and owns Roush Fenway Racing, a NASCAR team. The company was founded in 1896 and is headquartered in New York City, New York.


So, the vaunted NYT Corporation has interests in other things than printing newspapers. They own paper mills, have interests in web sites that are about health care, owns a sports team (The Red Sox), real estate, and a car racing team.

So, is the NYT Corporation a news organization, or something else? Who decides? You, me, the Great Pumpkin, or the Oracles of the FEC? Since they have interests in other items than newspapers, some of them clearly not "Press", so what makes this different from GE, which owns NBC, or Disney, which owns ABC?

Sorry for the long post, but this is one of the issues that makes my blood boil.

The fact is, our goverments have passed laws that make corporations necessary for the functioning of a large business, and now tries to regulate their speach based on the businesses doing what the government told them to.

You are correct, the Founding Fathers would not have envisioned the modern corporation, but they also would not have envisioned government putting in barriers and regulations that made the corporation necessary in the first place.
9.10.2009 11:47am
troll_dc2 (mail):

The fact is, our goverments have passed laws that make corporations necessary for the functioning of a large business, and now tries to regulate their speach based on the businesses doing what the government told them to.

Really? You hav a citation for that proposition?
9.10.2009 11:59am
einhverfr (mail) (www):
Taking this further:

How do we know, and for the purposes of CFR, that the news that the NYT newspaper sees fit to print, or their editorial positions, or their analysis of politicians statements are purely motivated by a desire to inform the people? We do not, and necessarily cannot know that, since we cannot read the minds of the editors, reporters or the Board of Directors of the NYT Corporation to discern what their motives are. We can guess, but I'd be willing to bet my reading of their motives and motivations are likely to be at odds with many other peoples. Who is correct?


For that matter there have been allegations that Rupert Murdoch has exercised a fairly heavy-handed level of control over political editorials at News Corp. channels (Fox News, etc).

As much as I prefer the NYT to Fox News, I think that trying to distinguish between them for purposes of first amendment rights is misguided.

But there are other issues too. There are fairly good reasons to think that Kerry lost the 2004 election due to campaign finance reform, so that rather than taking out election ads, several manufacturing businesses in Ohio sent out personal communications to all their workers 1) endorsing Bush, and 2) saying that an election of Kerry might cost them their jobs.

Because this did not take place in the public sphere, there was no possibility of rebuttal. To me that poses greater election transparency problems than corporate advertising for politicians did. My view then is that this DOES impact first amendment issues whether individually or collectively exercised, and that the current approach is problematic both on a legal and practical level.
9.10.2009 12:00pm
ArthurKirkland:

You are correct, the Founding Fathers would not have envisioned the modern corporation, but they also would not have envisioned government putting in barriers and regulations that made the corporation necessary in the first place.


The overwhelming reason for corporations seems to be a desire to avoid financial or other accountability (limited liability), with remarkably limited downside. Corporations aren't "necessary" -- they are preferred because they enable people to shift responsibility to others, and to play the ever-popular and highly profitable "heads I win, tails you lose" angle.
9.10.2009 12:07pm
einhverfr (mail) (www):
ArthurKirkland:

The overwhelming reason for corporations seems to be a desire to avoid financial or other accountability (limited liability), with remarkably limited downside.


You do realize that limited liability is only for shareholders, right? It doesn't excuse CEO's, Board members, etc. for their misconduct, or for their decisions which violate other laws. It only means a shareholder doesn't put his own personal property at risk beyond that which he invests in the corporation.
9.10.2009 12:17pm
Tritium (mail):
einhverfr
On natural rights analysis and corporations, I don't believe that such rights are fundamental but rather structural as they emerge from other social structures.

As regards these rights, we are endowed with them by the society we live in, not by some mythic figure (who is ALSO a cultural construct).


The declaratory amendments called the Bill of Rights, are based upon the principles of natural law, as well as natural sovereignty. No person has the right to infringe upon your rights, however they may still do so using force.

Congress shall make no laws infringing the freedom of speech. This law doesn't, it infringes upon the freedom of influencing elections through resources much more easily obtained than an individual could.

What is a corporation but a product of government. Would laws preventing military officers from discussing classified information an infringement upon their freedom of speech?
Cheney disclosing the name of a CIA Operative a freedom of speech?

Society didn't grant or allow me any of these rights, those rights would exist in me, even if society was found nowhere in existance. Only we limit ourselves, which is the other part of liberty... Responsibility. Can't have one without the other.
9.10.2009 12:27pm
Tritium (mail):
martinned:
How is the candidate supposed to get from town A to town B to campaign if he can't buy gas for his car?

How do people normally get to a job interview? Ultimately, that's all that is occuring, and i'm sure I could get hired on anywhere i wanted, if I had a budget of $10,000,000 to convince the interviewer, that I am the right choice.
9.10.2009 12:38pm
Aultimer:


None of those are true for single-shareholder corporations which are owned and run by the same person.



So all corporations should be treated like those owned and run by a single person because it sometimes happens that way? Or are you suggesting that limited liability alone isn't enough of a reason to treat a corporation differently than a human being?
9.10.2009 12:44pm
einhverfr (mail) (www):
Tritium:

The declaratory amendments called the Bill of Rights, are based upon the principles of natural law, as well as natural sovereignty. No person has the right to infringe upon your rights, however they may still do so using force.


That can't be right. If I break into your house and destroy your printing press, the crime doesn't become worse because I am interfering with your freedom of the press, and if neither breaking and entering nor vandalism was illegal, it wouldn't suddenly become a crime mandated by the Constitution.

Similarly, if you print a newspaper and distribute to a few retail outlets... If I go around buying all the copies of your newspaper and burn them, I haven't committed any crime. I have, however, certainly interfered with your ability to publish what you want.

The First Amendment doesn't create a right enforcible against other persons except for the corporate governments of the United States.


Congress shall make no laws infringing the freedom of speech. This law doesn't, it infringes upon the freedom of influencing elections through resources much more easily obtained than an individual could.


But it does so by abridging freedom of the press and of speech. For example, you don't seriously think that businesses like the NYT Corp. or News Corp have freedom of the press rights but J.P. Morgan Chase does not, right? Nor do you seriously think Microsoft has freedom of speech/press rights (through MSNBC) but Oracle does not?
9.10.2009 12:49pm
einhverfr (mail) (www):
Aultimer:

So all corporations should be treated like those owned and run by a single person because it sometimes happens that way? Or are you suggesting that limited liability alone isn't enough of a reason to treat a corporation differently than a human being?


The First Amendment requires that restrictions be narrowly tailored to meet a very compelling government interest. Surely you are not saying that all corporations should be treated the same because a small percentage of them are wealthy, right? If you are going to go that route, one should probably limit it to publicly traded companies instead of the corporate form. This is overbroad.
9.10.2009 12:51pm
troll_dc2 (mail):
The controversy over campaign finance reform is premised on the idea that money = speech. By regulating money, you are regulating speech. But is that really true? I know that a majority of the present Court is in love with this idea, but it seems to me that limiting the sources and amount of money merely makes it harder to disseminate views and persuade people but does not affect the ability of candidates to engage in speech; it merely limits their effectiveness, but is there a constitutional right to be effective?
9.10.2009 12:58pm
einhverfr (mail) (www):
troll_dc2:

By regulating money, you are regulating speech. But is that really true?


That's an oversimplification. The question is by regulating how money can be spent PUBLISHING speech, are you unduly interfering with freedom of the press or with freedom of speech?
9.10.2009 1:20pm
troll_dc2 (mail):
You are interfering with the right of a corporation to publish someone else's speech.
9.10.2009 1:27pm
methodact:
SCOTUS has had no trouble rubber-stamping deceit, fraud and wholesale lies to carve out vast exceptions to the First Amendment in many areas of sex and nudity. They turn their heads at laws enacted through illegal means such as use of government money and government employees, such as law enforcement, actively campaigning for such laws while on duty and massive government-directed around-the-clock-media moral panic campaigns.

California's own 3 Strikes law and prison crunch, is because of one too-powerful union:

For two years, Schwarzenegger tried to fight the prison guards, but found that even trying to find a compromise with the union was like trying to make a deal with the devil.

That in no way absolves the governor from responsibility. But that responsibility is shared by generations of lawmakers who succumbed to the power, money or persuasive tactics of the CCPOA.
Buckley v. Valeo used to mean something. But now, monopoly money is supposed to be the most sacrosanct of all speech? It has already corrupted the system. Laws are regularly written by lobbyists. Corporate cronies are appointed to the big government positions. They don't have enough influence? Huh? The corporatists have already installed their own to the US Supreme Court. The Chief Justice had previously made the Microsoft antitrust suit go away. Others have also proved their corporatist loyalty.

The bankster bailout has global banksters flush with cash, and it was decided back then that the US Supreme Court would convene early, a month before the first Monday in October, to begin to dispose of safeguards against the Corporate buying of elections. The Congress wants its unholy-massive kickbacks from the bailouts and stimulus sweetheart deals.

The courts want their pay raises and not just adjusted for the coming tsunami wave of hyperinflation. A fattened Congress with unlimited corporate funds from such a direct pay system will feel particularly generous to the judges. And such judges will feel contempt for the People.
9.10.2009 1:33pm
Tritium (mail):
einhverfr:
That can't be right. If I break into your house and destroy your printing press, the crime doesn't become worse because I am interfering with your freedom of the press, and if neither breaking and entering nor vandalism was illegal, it wouldn't suddenly become a crime mandated by the Constitution.

First, you are not congress as far as the Constitution goes. A person has liberty to do whatever he wishes, but he must be prepared for the consequences of his actions. The victim may seek justice, and not all justice is delivered in a court of law.

einhverfr:
Similarly, if you print a newspaper and distribute to a few retail outlets... If I go around buying all the copies of your newspaper and burn them, I haven't committed any crime. I have, however, certainly interfered with your ability to publish what you want.

Not really, You paid for the papers, now I can publish next weeks edition.

einhverfr:
The First Amendment doesn't create a right enforcible against other persons except for the corporate governments of the United States.

Eck... Yeah, I hope you don't consider the states corporate governments of the United States... In actuality, only the people have the authority to bind the states in their constitutional authority. Not the federal Congress, nor the state legislatures. Without the peoples express consent, an amendment cannot be supreme to the Constitution itself. The states remain independent of the federal authority, it's too bad most Americans have no clue, barely having read the Constitution itself, let alone the convention papers, federalist papers, and other sources.

einhverfr:
But it does so by abridging freedom of the press and of speech. For example, you don't seriously think that businesses like the NYT Corp. or News Corp have freedom of the press rights but J.P. Morgan Chase does not, right? Nor do you seriously think Microsoft has freedom of speech/press rights (through MSNBC) but Oracle does not?


Not really, corporations, like government, are limited in their existance according to their charter. That charter requires them to follow all laws of the state in which they were incorporated, and regulations set by the federal govenrment when conducting business ouside of the state.

Freedom of the press is a freedom that can only be exercised by an individual. Limiting Corproate powers does not infringe upon any rights, since a corporation has no rights, there would be no infringment created under the laws.

NYT, MSNBC, FOX, aren't exercising freedom of speech, they are providing a service according to charter, laws of that state, and any federal regulation.
It's always possible a state offers a freedom of speech as part of the charter, but such a right can only be exercised within the state.

Isn't using any form of cohercion intended to mislead the public, a violation of the publics right to accurate information?
9.10.2009 1:43pm
Oren:

The states remain independent of the federal authority, it's too bad most Americans have no clue, barely having read the Constitution itself, let alone the convention papers, federalist papers, and other sources.

What do the founding documents of the Republic of 1780 have anything to do with the Republic of 1866?
9.10.2009 1:45pm
troll_dc2 (mail):

Without the peoples express consent, an amendment cannot be supreme to the Constitution itself. The states remain independent of the federal authority, it's too bad most Americans have no clue, barely having read the Constitution itself, let alone the convention papers, federalist papers, and other sources.



Whatever happened to the Supremacy Clause?
9.10.2009 1:53pm
Aultimer:

einhverfr (mail) (www):

The First Amendment requires that restrictions be narrowly tailored to meet a very compelling government interest. Surely you are not saying that all corporations should be treated the same because a small percentage of them are wealthy, right? If you are going to go that route, one should probably limit it to publicly traded companies instead of the corporate form. This is overbroad.


I never mentioned wealth, but I see no reason to treat large corporations differently from small ones.

You say corporations should have the same treatment as humans because some corps are in fact similar to sole proprietorships, notwithstanding the fact that they may live forever, have independent personhood, limited liability and duties different from humans. The constitution isn't offended by restricting rights of corporations for the same reason the constituion isn't offended by restricting rights of unicorns and ventriloquist dummies.
9.10.2009 1:56pm
einhverfr (mail) (www):
Aultimer:

You say corporations should have the same treatment as humans because some corps are in fact similar to sole proprietorships, notwithstanding the fact that they may live forever, have independent personhood, limited liability and duties different from humans.


Functionally, single-person corporations (where one individual is owner, main business principle, etc) do not have any of those characteristics. They may as a matter of form but as a practical matter:

1) Banks won't let single-person corporations hide behind a corporate veil for loan purposes. They require the owner to co-sign all loans. So much for limited liability.

2) Independent personhood? How independant does that become?

3) Lives forever? I have never seen a single-person corporation survive the death of its owner.

4) Different duties? You mean if I own 100% of the corporation and am the sole officer and employee, I can effectively sue myself? How does that work, standing-wise?

Single-person sub-S corporations are a tax status, nothing more. It has to do with tax liability for dividends and tax benefits for losses.
9.10.2009 2:04pm
Don M. (mail):
troll_dc2:

You are wrong about my point anyway, that money = speech. I am arguing that CFR is by definition a restriction on speech.

Basically, the supporters of CFR argue that money given to politicians or spent in support or oppostion to certain candidates leads necessarily to corruption.

IT DOES NOT!

The politician is beholden to his own conscience and the people who elected him. If that person can be corrupted by money -- IT IS HIS OWN DAMNED FAULT! Why don't we prosecute the bad actor (the politian who allowed himself to be bribed), instead of putting restraints on people who have done nothing wrong?

Suppose that I run a corporation, and I believe that a politician is writing laws in such a way as to benefit my competitor, and I am the largest employer in the district, state, or whatever.

Are you saying that my spending money to place television ads decrying that is not "free speech". Remember, "free speech" not only covers the words, but the methods.

For example, I think banning flag burning is unconstitutional on its face. But, by the logic of CFR, could not someone state "I believe in that person's right to say that he thinks the United States and it's government is awful, genocidal, or whatever else. However, I believe that this method of expressing that view should be illegal."

The reason protesters burn the flag is that it is an effective way of communicating disgust with the USA or its government. Why should we in the case of CFR reform ban certain types of speech -- becuase it is effective? Because that is what in effect the supporters of CFR say.

It all goes back to one problem: Campaign Finance Reform as currently designed is an admission by our political class that they can be bought and sold, and since we (the poitical class) are so immoral and unethical that we are unable to police ourselves, we are going to deprive people of their constitutional right to air their greivances against me and other members of the political clss in some certain manners, while continuing to approve other methods that are more advantageous to the incumbents, (meaning me, the politician who is writing the law).

The real problems is the people we have in Congress, and most elected offices, including the President, apparently realize that they will steal anything not nailed down, violate the oath of office that was taken on assumption of that office, and is so corrupt and unaccountable to those that elected me, I, as a politician, must put limits on you, since I am unable to live up to the standards and limits that I expect you, the citizens, to live up to, through the laws that I wrote or voted on.

Aren't we putting the cart before the horse? If corruption is so rampant, then why aren't we putting the corrupted in jail, or at least impeaching them and throwing them out of office?

Would CFR fix the problem with Charlie Rangel -- No, since a corrupt person is a corrupt person, no matter where the corruption comes from.

So, in a nutshell, CFR is an attempt to guard against corruption by not punishing the corrupted, but by restricting the rights of the American People because the people we elect are corrupt, without proving that the actions of a particular group or person is corrupting. We are basically assuming that anyone who wishes to voice their opinion is automatically trying to bribe some politician, who, by definition, will accept the bribe and act against the best interests of the country or the people that the politician was elected to represent?

Are we really that far gone that we have to assume our elected officials are liars, cheats, and corrupt in general, and thus have to protect them from themselves?
9.10.2009 2:18pm
Tritium (mail):
Oren:
What do the founding documents of the Republic of 1780 have anything to do with the Republic of 1866?

I wasn't referring to the Republic of 1780, since if I recall properly, the republic I was referring to is of 1789, and I am not aware of a new Constitutional Republic being formed in 1866, though this was the period after the Civil War, I believe the southern states, after reconstruction, and beginning of our habitual need to occupy with our military forces, these states became part of the original union.. + 14th Amendment. Are you saying that the 14th amendment created a new Constitution? I do not recall conventions of the people of the several states in order establish a new government.

As Washington said in his farewell address:

This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
9.10.2009 2:23pm
Hannah:
Thanks for noting that the liberal-leaning justices and counsel here were the ones really invoking the Constitution. It's hard enough to witness conservative justices actively extending privileges that were indisputably intended for humans to legal fictions. At least we can stop pretending that Scalia and Thomas are adhering to our Constitution.
9.10.2009 2:30pm
einhverfr (mail) (www):
Tritium:

Is it fair to regard the Constitution as the Articles of Incorporation for the Federal Government?
9.10.2009 2:35pm
Don M. (mail):
Hannah,

You're missing something --

The First Amendment states:

"Congess shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (Note, I obviously left out part of the 1st Amendment that is not germane to the discussion of CFR.)

Corporations can be viewed as "People who peaceably assemble". There are employees, stockholders, customers, etc. who all have real stakes in the "legal fictions" as you call it.

So a group of people who have voluntarily assembled through their involvement in a corporation, have lost the right to assemble with the people of that corporation to excersize the rights to free speech?

After all, most big corporations are publicly owned, which means that the stockholders of that company are ultimately the decision makers as to the running of the company, the message that the company sends, and its actions in the political field. (The argument will be made that the Board of Director is not really the voice of the shareholders, but I could make the same argument about Congress and the adherence to the wishes of their direct constituency.)

The only "legal fiction" is the assumption by supporters of CFR is that somehow the people who have chosend to band together in this form of assembly (a corporation) have given up their rights to free speech in the most effective manner possible. The government should NEVER have an interest in suppressing speech simply because it is effective! And if the people choose to assemble in a certain manner, such as a corporation, or an advocacy group, or just as a buch of people who play golf together, pool their resources and place an advertisement that the political class doesn't like, how does that square with the 1st Amendment.

(Actually, high officers in corporations, at least publicy traded ones, have a fiduciary duty to represent the best interests of the shareholders, and can be sued or jailed for not doing so. Congress does not have that same legal liability, in that they can do something against the best interests of their constituency, and the only punishment will be at the ballot box. This is in itself an argument against CFR. Americans as a group have very short memories. Why make it illegal to remind their consituents the day before an election what the Senator did five years ago?)
9.10.2009 2:55pm
~aardvark (mail):

Let me get this straight, one corporation is allowed to use its resources to state basically anything they want to based on what product they claim to produce.

What if the NRA or the NAACP, or another interest group decides to print a "newspaper" or run television "news" in the traditional media outlets how they are not the "press"?


You got that right. The determination is based on the product. News, in general, are exempt from campaign finance laws, in the sense that someone has to pay for producing the publication and distributing it and that does not offset against any campaign funding. But if someone wants to submit a separate insert--paid advertisement, if you will--for the newspaper, that, currently, does count. And this is precisely the matter in dispute.

There is a very good reason why the press is exempt--there is the little matter of the first amendment. But news sources are also required to be transparent as to their corporate structure and ownership. So, the Scaife family may own a Pittsburgh paper and produce slanted editorial and endorsements, as long as everyone knows where the money comes from (and goes to). If the NRA had a newspaper or another publication and wanted to endorse candidates--oh, wait, they DO!!--it would not be a problem. The problem arises when news speech becomes commercial speech AND when corporate structure runs into tax-related regulations. For example, if a non-profit organization sets up a for-profit subsidiary that runs/owns a newspaper, there is no limitation. But if the non-profit runs/owns the newspaper directly, it runs into IRS regulations that require non-profits to be politically neutral. That, in particular, is somewhat of a gray area, but it's not purely theoretical. The current bidding for the Boston Globe includes two groups that promised to set up a non-profit corporation. And there are a lot of questions as to what the potential structure of that corporation will be, should they get a winning bid. There is also a distinction being made by the IRS between newspapers and newsletters--it's fairly obvious, although there may be some legal issues arising out of that as well. In this case, you also run into the Freedom of Association issues, not just Freedom of the Press.

AFAIK there is no legal dispute that more restrictions are allowed on commercial speech than on individual speech. Nor is there any dispute that the Freedoms are not absolute (Do you have a right to join al-Qaeda? Can you make unsubstantiated libelous statements in a publication while knowing that the claims are false? Can you use someone else's music as your political campaign theme song without permission? Do you have a right to make a half-hour political statement before your city council whenever you want?) The question are really to where the boundaries are drawn and the present dispute is no exception.
9.10.2009 3:22pm
Tritium (mail):
einhverfr:
Is it fair to regard the Constitution as the Articles of Incorporation for the Federal Government?

No, I do not believe the states are incorporated by the United States Constitution.

The United States Government is a government equal to the states, but established for specific purposes. Their Jurisdictions are distinctly separate, and the state is established by the people prior to joining the union.
9.10.2009 3:40pm
einhverfr (mail) (www):
aardvark:

You got that right. The determination is based on the product. News, in general, are exempt from campaign finance laws, in the sense that someone has to pay for producing the publication and distributing it and that does not offset against any campaign funding.


Cool. So I can create a not-for-profit but non-charitable newspaper that does nothing but political advocacy, then I can sell corporate product advertising on that newspaper and give advertisers a say in the who we endorse and why. Will you advertise with us for $5000 if we endorse your favorite candidate? My take from the oral argument is that this would not be permissible, but where does the line get drawn?
9.10.2009 3:56pm
Hannah:
Don M,

I don't think I'm missing anything. No one is suggesting people shouldn't be encouraged to peaceably assemble and exercise their freedom of speech as a group of individuals. Gathering individual voices is an effective and constitutionally-permitted way of influencing politics (like, for example, when we all sign petitions). Similarly, all these individuals are currently permitted to spend unlimited amounts of money, as individuals, to influence elections.

The problem comes in pretending that corporations are simply the sum of their parts, (rather than being much, much, MUCH greater than the sum of their parts). Corporations are specially-created entities that do not derive any "rights" from the Constitution. Their "rights" -- just like their existence -- derives from government approved charters, and particularly because we give them special advantages We the People have the authority to regulate their power and influence.
9.10.2009 4:09pm
einhverfr (mail) (www):
Hannah:

Do Corporations have any Constitutional rights in your opinion?
9.10.2009 4:25pm
Hannah:
einhverfr:

In my personal opinion, no, they don't. I realize my opinion hasn't always been shared by the courts.

I do, however, think corporations can be endowed with rights by those who created them. (i.e. We the People). So some rights that the Constitution affords humans, like due process, I personally would extend to corporations.
9.10.2009 4:59pm
Don M. (mail):
Hannah:

You've just made the point I was making for me. Corporations are by their inherent nature "Much, much greater than the sum of their parts."

THAT IS THE WHOLE PURPOSE OF ASSEMBLING. The voices of 100 people combined are always more powerful than 100 people standing alone.

Again, we are limiting speech based on effectiveness -- That is not a proper reason to limit speech.

I am of the people, and I want the corporation I work for, and those that I have stock in, to communicate to the people the concerns of the company in relation to particular issues and/or candidates. That is protecting my interests. Because I don't individually have the money to purchase airtime during "CSI" does not mean that I should not be able to give my money and support to a group, however defined, that in combination, does.

You are right, we do have government approved charters for corporations. However, you are giving the government power to limit criticism of the government. I don't care where the money to do so comes from, or even the motivations of the people or organizations doing the criticising. The point of the First Amendment is not to try to rationalize arcane differences as to what an "acceptable" association versus and "unacceptable" association. It is to give the people of the USA, and those they choose to "assemble peacefully" with the right to critisize the government, in the most effective way that can be found that does not endanger public safety and meets all other regulations imposed on all groups.

I think we are saying the same thing, but you and I disagree that the right of assembly is for a group of individuals. I don't believe it is so. If there were not an advantage in assembling as a group, (i.e., the whole was not greater than the sum of its parts.), then there would be no reason to ever peaceably assemble to protest the governments actions.

You are implying by your "group of individuals" that the million-man march would have been as effective if one million people went to the Mall at random times throughout the year, and did not show up at the same time, as long as they comported to be part of that group!

The real answer is that you believe that a group of individuals who pool their resources for economic reasons has inferior rights to those you believe have "better" reasons.

If you want to eliminate corporations, then as "We the People" have the right, through our elected represenatitives, to do so.

We do not have the power, or at least should not, have the power to restrict the rights of individuals to assemble in whatever form they choose to assemble, and petition to the government for a redress of their grievances, or limit their ability to criticize a government offical, simply because their motivation is economic, instead of more "altruistic" motivations.

(Please note that what I say also applies equally to labor unions, churches, advocacy groups, etc. I am only focusing on corporations since that has been the main thrust of the conversation.)

Plus, the other assumption that the supporters of CFR make is that the American People are stupid, and will not take into account who is saying what, and what their motivations may be, and will simply blindly believe whatever they are told. I believe that to be wrong, on the whole, but the supporters of CFR apparently do. Even if that is the case, then shouldn't more points of view, whatever the source or motivation, be welcomed?

(Note that I would probably support full disclosure policies. While I do not believe that disclosure should apply to individuals (no matter what they spend or do), I am willing to allow groups to lose that part of their free speech rights, but only grudgingly.)
9.10.2009 5:07pm
Tritium (mail):
The thing is, if a business is incorporated within the state, unless it engages in advertising across state lines, the laws couldn't be enforced.

Which is why I didn't agree with the Belloti case, since it had to do with state laws, and I Don't think the federal court had any authority over state laws over state corporations.
9.10.2009 5:12pm
einhverfr (mail) (www):
Hannah:

So, corporations can own property, right? If the government wants to seize all company vehicles (utility company maintenance vehicles), land, buildings and the like, does the takings clause come into effect?

Are corporations protected by equal protection under the law or by freedom from bills of attainder? Can Congress decide to fine AIG in the absence of a court judgement?

What about due process of law? Can corporations be fined for violating laws which are fundamentally arbitrary and capricious?

Can the federal government show up to search any corporate holding at any time without a warrant and without even the slightest idea of what they are looking for?
9.10.2009 5:16pm
Don M. (mail):
~aardvark

AFAIK there is no legal dispute that more restrictions are allowed on commercial speech than on individual speech. Nor is there any dispute that the Freedoms are not absolute (Do you have a right to join al-Qaeda? Can you make unsubstantiated libelous statements in a publication while knowing that the claims are false? Can you use someone else's music as your political campaign theme song without permission? Do you have a right to make a half-hour political statement before your city council whenever you want?) The question are really to where the boundaries are drawn and the present dispute is no exception.


But you're missing the point -- CFR reform does not seek to regulate commercial speech, it regulates political speech. While there are good reasons to limit commercial speech (misleading claims, incorrect claims, lies, etc.) I believe the traditional interpretation of the First Amendment is that libelous statements can be punished after the fact, but prior restraint by the government is not allowed. If I am wrong, please correct me. I'm but a lowly engineer, not a lawyer who has all the answers.

There can be limits on speech, but what we are talking about here is a BAN on speech. I am surprised that distinction seems to be lost.
9.10.2009 5:20pm
ShelbyC:
Hannah:

In my personal opinion, no, they don't. I realize my opinion hasn't always been shared by the courts.


When the governemnt punishes corporations for engaging in speech, who do you think they're trying to punish?
9.10.2009 5:21pm
Tritium (mail):
Can property be punished? And since companies can't have independent orignal thought or opinions, how can it engage in speech? People only get one freedom of speech, it doesn't create the right in the corporation by relation.

I still believe that when you start giving property rights, you are making property and person equal to each other, and I believe slavery is repugnant to our Constitution.
9.10.2009 5:32pm
einhverfr (mail) (www):
I would also point out that the First Amendment doesn't mention "people" or "person" in the context of freedom of speech or of the press. The 4th Amendment does. So if corporations have 4th and 5th amendment rights, why not 1st Amendment ones?
9.10.2009 5:33pm
Aultimer:

einhverfr (mail) (www):

Functionally, single-person corporations (where one individual is owner, main business principle, etc) do not have any of those characteristics. They may as a matter of form but as a practical matter:

1) Banks won't let single-person corporations hide behind a corporate veil for loan purposes. They require the owner to co-sign all loans. So much for limited liability.

Limited liability is quite a bit bigger than that. Think goods or services that non-negligently harm customers.

2) Independent personhood? How independant does that become?

3) Lives forever? I have never seen a single-person corporation survive the death of its owner.

4) Different duties? You mean if I own 100% of the corporation and am the sole officer and employee, I can effectively sue myself? How does that work, standing-wise?


Perhaps you're familiar with "single-person" corporations that have grown into multiple employee, and perhaps multiple shareholder, corporations?
9.10.2009 5:33pm
einhverfr (mail) (www):
Tritium:

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


The only area where persons or the people is mentioned is on the right to peaceably assemble and possibly (depending on how you read the construction) on the right to petition government.

If corporations, like News Corp and NYT Corp. have freedom of the press you can't distinguish that from free speech in the context of that amendment WHETHER OR NOT you treat corporations as persons.
9.10.2009 5:37pm
einhverfr (mail) (www):
Altimer:

I have known a number of individuals who incorporated their businesses. The VAST majority did so for reasons other than liability-- most notably tax benefits relating to pass-through corporations (Sub-S, LLC).
9.10.2009 5:39pm
Andrew Hyman (mail) (www):
Just thought I'd opine briefly. :-)

All these laws banning corporate or union speech seem like clear violations of the First Amendment.

At the same time, perhaps Congress can ban people from purporting to speak on behalf of other people without considerable consent AND substantial agreement of every one of those other people. Any takers?
9.10.2009 5:47pm
Don de Drain:
I have a question about the procedural aspects of the case. Roberts previously has stated that he prefers that cases be decided on as narrow grounds as possible. And as I understand the case {and it is possible my understanding is not correct), it could be decided on grounds narrower than the broad constitutional grounds which the Supremes are now considering. Is Roberts now going to succumb to temptation and ignore his stated preference for judicial restraint just to reach a result he wants to reach? I won't be surprised if he does this but will be disappointed.
9.10.2009 6:49pm
einhverfr (mail) (www):
Don de Drain:

I have a question about the procedural aspects of the case. Roberts previously has stated that he prefers that cases be decided on as narrow grounds as possible.


One consideration is whether a narrow rule in this case would create a chilling effect on speech. This seemed to be the substance of Scalia's questions.

However, I think the question is how broad of a Constitutional rulng is needed. That becomes a more interesting area and it will be interesting to see where it goes.
9.10.2009 7:03pm
Oren:

Cool. So I can create a not-for-profit but non-charitable newspaper that does nothing but political advocacy, then I can sell corporate product advertising on that newspaper and give advertisers a say in the who we endorse and why. Will you advertise with us for $5000 if we endorse your favorite candidate? My take from the oral argument is that this would not be permissible, but where does the line get drawn?

This is the essence of the privately-owned non-for-profit political advocacy corporation.
9.10.2009 7:15pm
ShelbyC:

At the same time, perhaps Congress can ban people from purporting to speak on behalf of other people without considerable consent AND substantial agreement of every one of those other people. Any takers?


I'm not sure I follow, but are you suggesting that Congress can ban someone from saying something like, "John Smith thinks that taxes are too high" when the speaker believes that John Smith in fact thinks that? No, no takers?
9.10.2009 7:59pm
~aardvark (mail):

So I can create a not-for-profit but non-charitable newspaper that does nothing but political advocacy, then I can sell corporate product advertising on that newspaper and give advertisers a say in the who we endorse and why.


You can do that now--and be convicted of bribery (or wire fraud, which is often the same thing, oddly enough). First, not-for-profit is a tax status for the organization, non-charitable is the tax status for the donor. In the former case, the business does not pay taxes. In the latter, the donor gets a tax deduction. The two are not really related, so that particular point of yours is completely wasted. You completely missed the tax point, in fact--by IRS rules that allow tax exemption for not-for-profit corporations, they must remain nominally neutral. In other words, they can endorse NO candidate whatsoever. They can't advocate any political issue--one has to wonder what happens to their editorial page at all. There is a difference between two levels of 501(c)s--one cannot advocate at all (501(c)3), the other can advocate on public policy (still no candidates, though--501(c)4). Most large organizations have both incorporated, but run separate budgets because they have different disclosure laws. But newspapers would not be able to advocate because they are not advocacy organizations. More specifically, they are not social welfare organization:

Seeking legislation germane to the organization's programs is a permissible means of attaining social welfare purposes. Thus, a section 501(c)(4) social welfare organization may further its exempt purposes through lobbying as its primary activity without jeopardizing its exempt status. An organization that has lost its section 501(c)(3) status due to substantial attempts to influence legislation may not thereafter qualify as a section 501(c)(4) organization. In addition, a section 501(c)(4) organization that engages in lobbying may be required to either provide notice to its members regarding the percentage of dues paid that are applicable to lobbying activities or pay a proxy tax. For more information, see Lobbying Issues .

Before some idiot notices the word "welfare" and runs with it, we are not talking about defending welfare queens. "Social welfare" means well-being of a society, thus "public advocacy". Tax levels are social welfare--if you advocate tax reduction, you can be a 501(c)4.

But you're missing the point -- CFR reform does not seek to regulate commercial speech, it regulates political speech.

If they can't vote, they can be regulated. If you are so inclined--along with activists on the Supreme Court--to grant full personhood to corporations, why not also give them a vote? If they are so similar to natural persons that they should be given speech rights and other rights constitutionally reserved for natural persons, why not just give them the whole enchilada? Maybe Citibank can be Mayor of New York, Deloitte &Touche the Comptroller of Connecticut, etc. The US Constitution requires a human being--and a US citizenship--to be in a political office, but city and state offices often have no such requirements.

Corporations have a right to be represented before the government. They have, as a whole, interests that may need to be addressed--and, in fact, negotiated. But to treat corporations as equal to natural persons in most rights is an affront to the latter. It diminishes humanity and human rights. Corporations should be represented the same way as foreign governments are represented--send an ambassador to argue the case, hire lobbyists (which they do anyway), go to court, if necessary. But stay out of government and politics in general. If you are not human, go back to the barn. In fact, there is absolutely no reason why any type of organization should have preference one over another. Why corporate personhood and not union? Why union and not a neighborhood council? Should the PTA have the same rights as corporations?

But the matter before the court is even worse. We don't let individual people get away with the kind of crap corporations are pulling in election season. How is it possible that corporations would have more rights than natural persons? Originalists should be up in arms over this--except that they are not. Why not, pray tell? Could it be that they are only originalists of convenience? Activists of convenience? Could it be that they are hanging on to convenient fiction to protect the interests of their friends and their ideology? Let's face it, this is rather significant precedent that they want to overturn. Not only do they not care for originalism, but they now want to ignore stare decisis as well. Who are these people?
9.10.2009 8:00pm
Hannah:
Don M and einhverfr:

(As I think Don M noted) I don't dispute that individuals, under the First Amendment, have the right to assemble and pool their resources (including their voices, and their money) and use those resources to make an impact bigger than they could have as individuals. (i.e. bigger than the sum of the parts)

However, just because we start endowing that "pool" with certain privileges of its own (e.g. to buy and own property, to sue and be sued, etc), we haven't created something that suddenly has constitutional rights.

The Constitution (and specifically, the First Amendment) is about people. It's "by" and "for" humans. If individual members of "We the People" get together and create other entities, we can perhaps endow those entities with rights, but those rights don't stem from the Constitution. In other words, you can argue that Exxon or the AFL-CIO, or Citizens United or its members, for that matter, have rights, but I would refute any claim that those rights are constitutional. (Those rights would stem from corporate charters, which for some reason, no one ever talks about anymore.)

So I have no problem with the Million Man March, etc -- until of course someone comes along and incorporates the MMM and gives it special rights, like limited liability for its "member parts" and eternal life, and then claims that MMM, Inc has a First Amendment right to free speech. Incorporation endows an entity with advantages that humans don't have (i.e. the inability to be incarcerated or feel emotion; inability to die, etc), therefore making them fundamentally different from humans. Constitutional rights were, I believe, intended by the Framers to apply to individuals with the human form, not the corporate form. (Rather compelling support for this is the fact that corporations existed at the time of the Founding, and yet the Framers never mention the word "corporation" in the Constitution.)
9.10.2009 8:13pm
einhverfr (mail) (www):
Aardvark:

If they can't vote, they can be regulated. If you are so inclined--along with activists on the Supreme Court--to grant full personhood to corporations, why not also give them a vote?


I must say I find that to be a very troubling line, this idea that voting equals freedom of speech.

For example, if an alien permanent resident wants to take up campaigning for a candidate, are you going to say that since aliens can't vote, they have no free speech rights?

Similarly, if a 17-year-old citizen saves up for, produces, and airs a political advertisement, this is subject to additional age-based regulations on the speaker?

I would also submit based on my experience working in various corporations that corporations DO vote in elections, i.e. that major shareholders and those workers who are deeply invested (career-wise or stock-wise) tend to vote in ways they think benefits their company. When I was working at Microsoft and Maria Cantwell quit her job at Real Networks to run, I knew very many folk at Microsoft who wouldn't vote for her just because she came from the competition.


We don't let individual people get away with the kind of crap corporations are pulling in election season.


Then we can address that as certainly corporations should not have more freedom of speech than natural persons. However, can you give me an example of what a corporation is allowed to do that an individual may not?

Once again, my concern is that the particular statute at issue here is IMO facially overbroad. I don't preclude the possibility that narrower versions might be acceptable.


You can do that now--and be convicted of bribery (or wire fraud, which is often the same thing, oddly enough).


Ok.... So suppose the newspaper is not a corporate entity but a hobby (not for profit, non-corporate). All money relating to making endorsements for advertising purposes is used for printing the paper. Still illegal?

Suppose major corporations threaten to pull advertising contracts from the NYT if they endorse a specific candidate? How different is that?

In fact, how different is that from calling on Walmart to pull advertising from certain political commentary shows on Fox News?
9.10.2009 8:22pm
ShelbyC:
Hannah:

Constitutional rights were, I believe, intended by the Framers to apply to individuals with the human form, not the corporate form. (Rather compelling support for this is the fact that corporations existed at the time of the Founding, and yet the Framers never mention the word "corporation" in the Constitution.)


But when corporations are punished for engaging in speech, it is really the underlying humans that are punished, no? So when you treat the legally ficticious corporation as if it had 1st amendment rights, you are really protecting the rights of the underlying humans, no?
9.10.2009 8:31pm
einhverfr (mail) (www):
Hannah:

However, just because we start endowing that "pool" with certain privileges of its own (e.g. to buy and own property, to sue and be sued, etc), we haven't created something that suddenly has constitutional rights.


Certainly nobody is arguing that all rights in the Constitution are applicable to corporate entities. Certainly Microsoft is over years old and was first created in the US, but that doesn't mean we could elect Microsoft to the office of Senator next time Maria Cantwell is up for re-election.

Nor does it allow Microsoft, as a separate corporate entity, to vote in an election even though the working at any corporation clearly does impact voting tendencies.

Nor are corporations factored into the number of seats a state gets in the House. If they were, Delaware would have much more representation than they do.

At the same time, we DO grant corporations many of the rights which are enshrined in our Constitution where those rights are closely related to our basic sense of a rule of law. Corporations are entitled to due process of law, and they have 4th amendment protections as well. We expect corporations like News Corp, Washington Post, and NYT Corp to have freedom of the press.

These rights don't just derive from corporate charters but from the very structure of our system of law and government. They are created by that system of law and they are endowed by that creator with rights which are fundamental to our system of law and are hence unalienable. These do not include life, liberty, or the pursuit of happiness, but they do include the right to due process, equal protection, and the like. This is why corporate charters have never needed to specify protections for a corporation such as due process of law before property can be seized.

This then creates a system where rights relating to certain things are reserved for natural persons, and other rights are reserved for all persons. The fundamental question is then which category free speech and free press belong in. Are they like the right to vote? Or are they functional, systemic requirements for our system of law?

Modern first amendment jurisprudence is remarkable in both the level of protection free expression is granted and also the reasoning behind it. This reasoning has developed from the basic analogy between a capitalist, market economy and a functioning democracy. This marketplace of ideas analogy is then to be central to the protection of political speech and is behind the most important cases in this area (Yates, Brandenburg, etc).

If we accept this analogy, then we have to accept that corproations possess freedom of speech as well. However, we also have to accept that just as monopolizing a capitalist marketplace is problematic, that monopolizing the marketplace of ideas is a problem as well and could be restricted.

Therefore I think that the question needs to be whether the campaign finance laws, as applied, are essentially anti-trust laws in the marketplace of ideas, or whether they are broader than that.
9.10.2009 8:42pm
TKN (www):
A small note: the explicit freedom of the press could be interpreted as an exception to the status quo of corporations not having rights.
9.10.2009 9:40pm
Tritium (mail):

Perhaps it isn't a law afterall, but a regulation? Now of course, there is also the ban on sitting Presidents receiving emoluments from the United states or any of them.

Artilce II, Section 1, The president shall, at stated times, receive for his services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that period any other Emoluments from the United States, or any of them.

The Constitution recognizes the state(s) and the people of the several states. The thing that makes the Bill of Rights so complicated is that they are basically restrictions on a power never delegated. They are merely declaratory, and not enforceable. I'm even wondering if they can be relied upon to declare a law unconstitutional. Ultimately the lack of authority to legislate on the subject would be what makes it Unconstitutional.

I think it's also important to consider, that speech is not being abridged, the place of speech and time period make it inappropriate, like screaming fire in a crowded theatre.
9.10.2009 9:43pm
David M. Nieporent (www):
I think it's also important to consider, that speech is not being abridged, the place of speech and time period make it inappropriate, like screaming fire in a crowded theatre.
But screaming fire in a crowded theater is perfectly legitimate. At least if true.
9.10.2009 9:55pm
Tritium (mail):
You know what the most disappointing thing is about this legislation? All it really does is protect incumbents from being smeared by people or corporations. And you know the newspaper, TV news, etc are pocketpals, so no real danger there. With all the corruption, and this legislation is all they could come up with? Banning all contributions, and acceptance of any benefit (emolument) whatsoever is punishable by crucifiction, or life inhuntment with Dick Cheney.

If I were to determine their true pay value, I think the illegal immigrants would make more on a 20 hour work week.
9.10.2009 10:48pm
~aardvark (mail):

When the governemnt punishes corporations for engaging in speech, who do you think they're trying to punish?


This is not an issue at all--they are being punished for breaking the law, not for engaging in speech. If they are granted speech rights, the law would be vacated and no one would be punished.


But when corporations are punished for engaging in speech, it is really the underlying humans that are punished, no? So when you treat the legally ficticious corporation as if it had 1st amendment rights, you are really protecting the rights of the underlying humans, no?


Nonsense! Corporations and their officers can have entirely separate criminal acts. One is not punished for the sins of the other--or, at least, the officers are not punished for the sins of the corporation, but for their own illegal conduct. Can a corporation have illegal conduct that is separate from the actions of the officers? Sure! Consider the case where a corporation is dumping X illegally in Y. Officer A may know that dumping X takes place, but he does not know where. Officer B may know that dumping in Y is illegal, but does not know that the corporation is doing it. Collectively, the corporation is doing something illegal and can be prosecuted for it, even though neither officer can take responsibility for the illegal conduct--at best, they may be guilty of negligence for failure to communicate with each other. In the end, everyone is liable, but for different things (and corporate acts that entail substantial civil fines rarely entail similar fines for the officers--although, on some occasions, a settlement may demand removal of officers, even if the corporation has not done so already).


If corporations, like News Corp and NYT Corp. have freedom of the press you can't distinguish that from free speech in the context of that amendment WHETHER OR NOT you treat corporations as persons.


I suspect, you are missing the point--the rights granted to them arise from the fact that they are the press, not that they are corporations. If you can't distinguish between the two, you have a whole different sort of problems.


I would also submit based on my experience working in various corporations that corporations DO vote in elections, i.e. that major shareholders and those workers who are deeply invested (career-wise or stock-wise) tend to vote in ways they think benefits their company.


You must have very faulty experience. People may vote ostensibly in the interest of their corporations because it is in their financial interest to do so. If this is against their financial interest, you will find that they ignore corporate interests. Officers may have a fiduciary duty to their corporation--but that duty stops when they enter the voting booth. Shareholders, should they find out that an officer or a director may have voted in a way that it hurts the interests of the corporation and may subsequently decide to remove him. But there is no legal challenge that can be raised in this regard and there is no obligation on the officer or director to do anything contrary to his conscience. To put it simply, their voting is not a corporate decision. Shareholders, presumably, generally believe that what is in the interest of the company will subsequently produce improved returns on their investments, so they vote with their checkbooks. The actual interests of the corporation in these cases are completely irrelevant. Any suggestion to the contrary is simply preposterous.

I may have gone too far in playing devil's advocate and suggesting that not voting is sufficient to produce regulation of speech. It was meant to illustrate the point, not to be an absolute statement. The fact is, the rights we are talking about--speech, press, assembly--are not absolute by any stretch of imagination, and different groups or classes of persons may have different restrictions on their rights. For example, a citizen may not be deported or stripped of citizenship for merely performing an act that benefits a foreign power--unless he does so deliberately in declaring his allegiance to that power. He may be arrested and prosecuted for treason or other criminal acts, or, it may be, particularly if the action is inadvertent, that he will be simply left alone. Not so for non-citizens. If their speech act is deemed to be a violation of their visa status, that status may be revoked and they may be deported. Similarly, there are many prosecutable restrictions on speech that may result in different punishment to minors than to adults (these are the cases where the speech rights run up against public safety and interest). An 11 year old who falsely screams "Fire!" in a crowded theatre will be prosecuted differently than an 19 year old. Similarly, students have different speech rights from teacher and from those who have no connection to schools. To make matters worse, a speech act that is proscribed under some circumstances may not be proscribed under others for the same person (e.g., student speech in school and out of school). So, yes, we do treat different groups differently and endow them with different rights. So there is no objective reason to say that corporations--who are not natural persons and were never intended to be such by the framers of the Constitution--should be endowed with the same rights as natural persons.
9.10.2009 11:38pm
~aardvark (mail):
@Tritium
Perhaps it isn't a law afterall, but a regulation?

This is a distinction without a difference. Every regulation IS a law. Administrative rules are laws.

What you might have intended is the distinction between a constitutionally mandated law and a statutory one, but that also seems to me to be a stretch--except for proscriptions or other restrictions (e.g., the minimum age of the president is constitutionally mandated, the minimum age of a miner may be mandated by federal regulations.).
9.10.2009 11:45pm
Hannah:
Shelby C:


But when corporations are punished for engaging in speech, it is really the underlying humans that are punished, no? So when you treat the legally ficticious corporation as if it had 1st amendment rights, you are really protecting the rights of the underlying humans, no?


I would say no, when you restrict a corporation's "free speech" (whatever that is, though we'll just assume we mean spending money) you are not restricting the First Amendment rights of the individuals within that corporation. Those people still have the First Amendment right to freedom of speech as individuals, (unless, of course, they're not Americans) and I strongly encourage them to make use of that right.
9.11.2009 12:05am
einhverfr (mail) (www):
Aardvark:

To make matters worse, a speech act that is proscribed under some circumstances may not be proscribed under others for the same person (e.g., student speech in school and out of school). So, yes, we do treat different groups differently and endow them with different rights. So there is no objective reason to say that corporations--who are not natural persons and were never intended to be such by the framers of the Constitution--should be endowed with the same rights as natural persons.


I never said the same rights. I said they were endowed by their creator (the American legal system) with rights which arose from the structure of our system of law and government. You know, due process, equal protection, and all that. Also not EVERY person has the same rights according to the Constitution either. THere is no right to vote for 17-year-olds, US Nationals who are non-Citizens, alien residents, etc.

So yes, some differences make sense.

However, the line you would have had us draw is a "no vote, no speech" line which would be even broader thatn the line in this legislation. Such a line would presumably preclude non-citizen immigrants from contributing to campaigns, volunteering to canvas for candidates, etc. No vote, no speech strikes me as extremely DANGEROUS.

Furthermore our democracy is predicated on the idea that the marketplace of ideas is central to our political process. Corporations have a role to play here. However, I will concede that if one can show damage to that marketplace, that reasonably narrow restrictions could be passed in the same way we see anti-trust law in play. Bans on large contributions to candidates may be seen in that light, but it is hard to see independent speech in that light absent an anti-competitive element.

The fact is that we enjoy strong freedom of expression in this country because of the idea that the marketplace of ideas is so important. If we say "well, that marketplace is only for voters" I think we undercut that system in important ways.


I suspect, you are missing the point--the rights granted to them arise from the fact that they are the press, not that they are corporations. If you can't distinguish between the two, you have a whole different sort of problems.


I am not sure they can be distinguished neatly. News Corp. for example, isn't just a press. They own movie studios, entertainment channels, etc. and seem to engage often in baldfaced political advocacy on their news broadcasting.

NYT Corp owns a NASCAR team, a baseball team, and many other businesses.

Could GE pay to have a newspaper printed for the sole purpose of political advocacy? Why or why not? What about NBC News (also owned by GE)? What about GE and Microsoft creating jointly MSNBC?

Should Oracle create the Delphi News Service just so they can do political advocacy too? How is this qualitatively different from buying advertising?
9.11.2009 1:30am
Brett Bellmore:
Leave aside the constitutional prohibition in question, which says nothing to limit whose speech shall not be restricted, but rather says Congress shall do no restricting. Leave aside the lack of any enumerated power to enact the restriction in question.

What has always floored me about campaign 'reformers' is the way they just blow off, (If they acknowledge it at all, which they usually don't.) the staggering conflict of interest involved in letting incumbent elected office holders regulate speech on this topic of all topics: Whether they should be reelected.

Even if it were constitutional, it would be utter madness to have Congress legislating on this topic.
9.11.2009 6:49am
Don M. (mail):
I am going to make one more comment —

The ban on advocacy ads, and so-called attack ads in most CFR bills is a set period of time before an election.

Just last night, I saw AARP run a commercial during the NFL game last night advocating for Health Care Reform.

So, current law already says that incorporated (AARP sells insurance, I know, since I helped my father enroll in the AARP Medigap plan when he turned 65. Whether they are the underwriter or not, they clearly profit form selling insurance) businesses may run the kinds of advertisements we have been discussing any time except some arbitrary number of days before an election. In fact, Barack Obama himself has been bought off by the drug companies, as it as been widely reported that the drug companies have agreed to run advertisements in favor of health care reform, to the tune of $150,000,000 dollars.

http://www.nytimes.com/2009/08/09/health/policy/09lobby.html

Does anyone think that the drug companies are getting nothing in return? Of course not.

So, CFR doesn't prevent the corrupting influence of money, so what does CFR (as currently written) actually do?

Does anyone think that CFR is about preventing corruption, or is it really about keeping incumbents in office? If it is so bad for advocacy groups to run these advertisements an arbitrary number of days before an election, then why should it not be illegal all of the time?

Does anyone think that the time limits serve any legitimate government purpose? Advocacy advertising is either legal or illegal, regardless of when. Of course, we know an outright ban on advocacy advertisements would immediately be struck down as unconstitutional, but somehow restricting it an arbitrary number of days before and election is A-OK?

We have a law that says, in effect, Murder is generally illegal, except on the Third Tuesday of a month following a Friday the Thirteenth when there is a full moon.

I know that example is nonsensical, but I am trying to point out the nonsensical portion of CFR.

So, the only conclusion that can be reached is:

A) It is advantageous to incumbents to limit the amount of speech against them in the run-up to an election. The incumbent is by definition a member of government, and has the bully pulpit to state whatever they wish, and CFR prohibits interested parties from effectively reaching the same number of people. That seems like a speech restriction, no?

B) It still allows the politicians to accept the bribes from companies, (see Barack Obama and the "Big Pharma" deal from the NYT above), but limits the ability of any challengers to do the same. Cynical point of view, I know, but clearly that is what we are talking about here. Clearly, if our political class was not corrupt, we would not need CFR. We are skirting the consitution, if not outright breaking it, because of the corruption of our political class.

C) As I have previously stated, the American people notoriously have a short attention span, so the politicians who wrote the law have written a law to ban this sort of advocacy when it would be most effective at hurting their re-election chances! Is it really a compelling government interest to increase the re-election chances of an incumbent? I am pretty sure the reason we have elections is so that we have a choice in whether to retain the incumbent. Here, we are restricting the amount and types of information that can be given to the American people, for no compelling governmental reason.

If there were a compelling governmental reason, then these types of ads would be banned universally.
9.11.2009 9:39am
Oren:

So, CFR doesn't prevent the corrupting influence of money, so what does CFR (as currently written) actually do?

This is such a lousy logical argument that it's scarcely worth rebutting.

There was a murder by here a few weeks ago. Since the criminal statutes didn't prevent the murder, what do the statutes (as currently written) actually do?

[ Still opposed to CFR irrespective of this amazingly faulty argument. ]
9.11.2009 1:02pm
einhverfr (mail) (www):
So it seems patently obvious who should win this case (Citizens United).

The question I have for CFR supporters is on what grounds should that decision be made? Because Citizens United is a corporation which is founded for the sole purpose of political advocacy?
9.11.2009 1:28pm
Don M. (mail):
Oren:

That statement was not an argument against CFR, but a rhetorical question that I answered in the following paragraphs.

I know that having laws on the books does not mean that people will not break them.

I was trying to point out the "unintended consequences" of the law, but I believe these "inintended consequences" are intended. If that opening question was seen as an argument against the law exisiting, I apologize.
9.11.2009 2:05pm
Andrew Hyman (mail) (www):
ShelbyC, I was brainstorming about how Congress might react to a SCOTUS holding that unions and corporations cannot be silenced re. political issues. The big problem with such a ruling would be that many union members and shareholders would effectively be funding speech with which they disagree. Even if SCOTUS overturns the ban on political speech by unions and corporations, I suspect that Congress would still be able to address the problem. No, I don't want Congress to bar someone from saying, "John Smith thinks that taxes are too high" when the speaker believes that John Smith in fact thinks otherwise. But maybe Congress could say that unions and corporations must have unanimous approval from their boards for any particular bit of political speech.
9.11.2009 4:05pm
Oren:
But the rhetorical question doesn't lead to the conclusion in the second clause. You say "Political corruption continues and therefore CFR it must have ulterior motive" whereas I say that it's at least plausible that any combination of the following conclusions follow:

(1) Our CFR statutes are poorly drafted.
(2) Our CFR statutes are poorly implemented by the FEC.
(3) Political corruption is a very difficult problem that even the best CFR statute can only partially mitigate.
(4) That political constraints on CFR render it ineffectual.
(5) That legal (constitutional) constraints on CFR render it ineffectual.


Because Citizens United is a corporation which is founded for the sole purpose of political advocacy?

I'm not going to answer the question, but it is apparent that, in the end, such corporations should end up free and clear.
9.11.2009 4:21pm
einhverfr (mail) (www):
Andrew Hyman:

I favor the ACLU's position in Citizens United, suggesting that corporations cannot be CATEGORICALLY silenced because that would be overbroad.
9.11.2009 5:17pm
Tritium (mail):
Conclusion:

Congress has as much authority to restrict corporations &Campaign related expenditures, as it has the authority to accept bribe payments behind the disguise of campaign contributions. Therefore, any corporate or personal expenditures used to benefit any candidate can only be viewed as a violation of the office of trust they are running for, and immediately disqualifies them to hold office. All those who contributed to the 'ad' being viewed by the public will be guilty of interfering with federal elections.

Or something like that.
9.11.2009 6:55pm
einhverfr (mail) (www):
Tritium:

How do you square that with Massacheussets Committee For Life v. FEC?

MCFL is a corporation, right?

Or was MCFL wrongly decided?
9.13.2009 12:47am
Oren:
Wasn't it wisconsin, not MA?
9.13.2009 2:10am
einhverfr (mail) (www):
Oren:

Different cases.

Massachusetts Committee For Life vs FEC came before Austin v. Mich. Chamber of Commerce
Wisconsin Right to Life v. FEC came after McConnel.
9.13.2009 4:49pm
einhverfr (mail) (www):
Links to the cases above:
Massachussets Citizens for Life v. F.E.C (sorry got the title wrong before). Decided in 1986.

F.E.C. v. Wisconsin Right to Life
9.14.2009 5:16pm

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