Friday, September 18, 2009

Does Corporate Cash Equal Speech?

The Supreme Court of the United States will be making a decision this session that could have a devastating effect on elections.

SCOTUS Since the rise of modern corporations a century ago, Congress has restricted their participation in political campaigns, recognizing the potential for vast corporate treasuries to drown out the voices of citizens. Since 1947, federal law has prohibited corporations (and unions) from using their general treasury funds for campaign contributions or expenditures. But the Supreme Court now threatens to upend that tradition. Ironically, it seems poised to usher laissez-faire into the marketplace of ideas just as we have seen the bankruptcy of that theory in the capital markets.

Last term the Court took the unusual step of ordering re-argument in a narrow and technical case. Citizens United v. Federal Election Commission asked only whether the FEC could bar a nonprofit corporation from distributing, via on-demand cable TV, Hillary, a film critical of Hillary Clinton, during the 2008 presidential primary. After the case was argued, the Court on its own initiative raised the stakes dramatically by requesting further briefing and argument on a much broader question--whether it should overrule two prior decisions upholding Congress's power to restrict corporate speech in political campaigns. If it does so, it will leave the voting process even more vulnerable to capture by the wealthy and powerful.

One of the precedents under consideration, Austin v. Michigan Chamber of Commerce (1990), is significant chiefly for its recognition that government has a "compelling interest" in counteracting "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Citizens United has set its sights on overturning the principle. Its suit has been joined by the ACLU and esteemed lawyer Floyd Abrams. While this is an issue reasonable progressives can disagree on, we believe Abrams and the First Amendment advocates at the ACLU are confusing the speech of a corporation with that of living, breathing citizens… [emphasis added]

Inserted from <The Nation>

The following article explains how we came to this point.

corporate greed Talk about "judicial activism"! Through a series of remarkably aggressive procedures, a majority on the US Supreme Court seems determined to give new powers, even personal traits, to inanimate entities that amass money through commercial transactions, namely corporations. The Court could have kept the focus of the Citizens United case on whether the group's video about Hillary Clinton should be subject to the McCain-Feingold federal law that regulates electioneering through the broadcast media. It could have, for example, ruled that the video was provided to viewers at their request via the Internet, not widely pushed onto them through the airwaves. 

But the Court took a different route, introducing on its own new Constitutional issues about the political powers of corporations not argued by the appellant and not buttressed with a robust factual record from a lower court. Citizens United used funds from corporations to finance its video; corporations can't vote or be put in jail, but they can live "in perpetuity" and shield individuals from legal liability. Why should they have the political "free speech" rights guaranteed for "we the people," rather than more narrow "commercial speech" rights developed through centuries of litigation? Individual stockholders and employees can band together into political action committees and, using their personal money, exert influence on the political process; that's far different than allowing the CEO of Mega-Firm to write checks from the corporate treasury to candidates…

Inserted from <Facing South>

Corporations do not speak.  They have one function only.  They exist to profit.  I have long opposed the existence of corporations in their current form.  I consider it obscene that a financial entity should enjoy the same rights and privileges as a human being, but share few of the responsibilities.  Most of the ills facing our society today result from corporate greed, as corporations have abused their rights and profited at our expense.  I was highly surprised to learn that someone with far more influence than I shares my view.

SoniaSotomayer In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law.

During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

Inserted from <Wall Street Journal>

Kudos to Justice Sotomayor!

To answer my question in the title, money does not equal speech.  If we are to have equal rights under the law, any provision that magnifies the rights of wealth, violates the principal of equality.  For that reason, I am also for publicly finances elections.  How else can we cure the effect of corporate cash: the best Congress money can buy?


the walking man said...

I do believe the sole purpose of this court's conservative minority is to act in collusion with the corporacracy. Providing legal binding decisions that finally and ultimately turn over the governance of the country to them who would rape us.

Who investigates the Supreme Court? At what point in time has anyone looked at their finances? And where they get their speaking fees from? And if there is something found who fights it? It is not supposed to be a self regulating institution but no one has the nuts to look into this perfidy.

Brother Tim said...

To answer you title question: Hypothetically, No; Realistically, Yes. Maybe better put, it may not equal it, but it certainly buys the podium.

Annette said...

Well we already know the Court was part of the problem in the elections in the past..

They were bought and paid for by Bush and Cheney.. It is time for that to end..

Let's hope it will now.

TomCat said...

Mark, I think you are correct. Once they are appointed, the only way to remove them is to impeach them. That's why it is so important for Obama to appoint no more moderated to the Court. It is necessary to balance the extreme right bias.

Brother, that's my point, and that needs to change.

Annette, I don't think they were bought and paid for, but that the Justices appointed under Reagan and both Bushes were ideologues before they reached the court.

Randal Graves said...

Sonia better watch it or she'll be sleeping with the fishes.

Dave Dubya said...

In these times is is political heresy, although the right thing to do, to question corporate personhood. It is a historical sham by 19th century railroad interests.

Corporate personhood and "free speech" campaign money are toxic to democracy. Revocation of corporate personhood and public campaign financing are the vital changes we need. I would add one more essential componant for democracy's survival. Media monopolization needs to be dismantled.

See, we have the answers, we just lack the public awareness and political representaion.

TomCat said...

Randal, I hope you aren't prophetic. The way wing-nuts wearing guns are placing themselves around officials is a real concern.

TomCat said...

Dave, eventually representation will come. Increasing public awareness is our job.

Anonymous said...

This is much broader than a free speech issue.

Corporations, unions, organizations — more broadly non-citizen legal entities — are established by the legislative process. They are creatures of the legislature, not of the Constitution. Their rights and limitations can be included in the laws that charter the non-citizen legal entities. Non-citizen legal entities are not allowed to vote. They don't have a designated Representative, nor two Senators. Any constitutional guarantees are indirect in the sense that laws shall not violate the Constitution. People have constitutional guarantees, not non-citizen legal entities. The Bill of Rights is for people not non-citizen legal entities. An important exception is the press.

Allowing non-citizen legal entities — many of which have large resources and funds that could be allocated to ballot and election issues — decreases the influence of each citizen (who does have constitutional guarantees). Granting non-citizen legal entities unrestricted rights of free speech which includes unlimited spending, waters down the rights of citizens.

Of course, non-citizen legal entities should be able to act for a group of citizens as part of freedom of association. That includes advocacy in ballot and election issues, but only where the funds are voluntarily provided by citizens for the political purposes. PACs are the obvious example which rely solely on voluntary donations from people for the political purposes defined by the PAC.

Nowhere is this erosion of individual rights more obvious than in Washington. The special interests (non-citizen legal entities) have the money for lobbyists, contributions, organizing and conducting conferences, etc. that are out of reach for the individual voter. How many citizens have lobbyists? But draw the line when it comes to ballot and election issues. However, non-citizen legal entities should be able to provide information to the legislation, but without any associated money.

The special interest influence is obvious in the debate over health care reform. The debate and issues in Washington are dominated by the special issues. Individual citizens have very little voice. But citizens have made their voices heard in the town hall meetings, in which the special interests (non-citizen legal entities) have little or no status or standing.

Shouldn't Washington be more like the town hall meetings? Limiting the free speech of the non-citizen legal entities concerning ballot and election issues is a step in that direction.

Don Nordeen
Gaylord, Michigan

TomCat said...

Welcome Don. What you say is not without some merit, but my argument is that from the start, the corporation was created as an entity to allow its principals to escape individual responsibility for corporate acts. My argument is that legal entities, since they are not citizens, should not have the rights citizens do. Citizens may support campaigns, but there are limits upon how much money citizens may donate. Officers and employees of corporations may exercise these same rights as citizens. But giving them the right to spend as corporations too, gives the citizens who make corporate decisions more rights than ordinary citizens.