Montana Supreme Court takes on the US Supreme Court
January 9, 2012 11:30 AM   Subscribe

Last week Montana's Supreme Court ruled 5-2 to essentialy ignore Citizens United. Even Justice James C. Nelson one of the 2 dissenters had this to say about the Citizens United decision:
"Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people — human beings — to share fundamental, natural rights with soulless creatures of government,"
Of course the prediction is an overturn of the Montana ruling, but some hope that now given the real world examples of the modern SuperPac Justice Kennedy will at least revisit some of his earlier justification. (the ruling in question: Western Tradition Partnership, Inc. v. Attorney Generalpdf)
posted by edgeways (150 comments total) 28 users marked this as a favorite

 
Pointless, except as a form of protest. There's too much money & power backing the stupefying results of Citizens United v. FEC for such open rebellion to stand.

And that's a damned shame.
posted by FormlessOne at 11:34 AM on January 9, 2012 [5 favorites]


"Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people — human beings — to share fundamental, natural rights with soulless creatures of government..."

I feel like this should be carved in stone on some sort of public edifice.
posted by TheWhiteSkull at 11:40 AM on January 9, 2012 [59 favorites]


I am more or less at peace with the idea that people who do not study history are doomed to repeat it, but I am deeply annoyed that those of us who have studied history are going to have to live through the Gilded Age again, just because of other people's ignorance. Well, that and greed and a whole bunch of money being spent....
posted by GenjiandProust at 11:41 AM on January 9, 2012 [73 favorites]


Every time I hear about Citizens United, I think of the horrible anti-Hillary Clinton group that sprung up during the '08 primaries. They called themselves "Citizens United Not Timid."
posted by Faint of Butt at 11:42 AM on January 9, 2012


I quite agree! About time! I really resent corporations being in the same league as I am! They have their place, they need to stay in it.
posted by Katjusa Roquette at 11:43 AM on January 9, 2012


Every time I hear about Citizens United, I think of the horrible anti-Hillary Clinton group that sprung up during the '08 primaries. They called themselves "Citizens United Not Timid."

That's the group who brought the lawsuit. They shortened their name at some point.
posted by jedicus at 11:46 AM on January 9, 2012


There's too much money & power backing the stupefying results of Citizens United v. FEC for such open rebellion to stand.

Our only hope is the lag time between when a set of politicians is bought by new corporations and when those politicians manage to get Justices on the Supreme Court. It's just barely possible that antagonistic enough corporations are in charge of each branch that they'll hammer out an agreement that weakens them a bit and real humans can get a toehold.
posted by DU at 11:48 AM on January 9, 2012


That's the group who brought the lawsuit. They shortened their name at some point.

I don't think that's true, as unsurprising as it would be. According to Wikipedia, CU was founded in 1988, and the 527-that-shall-not-be-acronymed was founded by Republican thug Roger Stone in 2008.
posted by Faint of Butt at 11:50 AM on January 9, 2012 [1 favorite]


"Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people — human beings — to share fundamental, natural rights with soulless creatures of government..."

Worth noting that one of the two dissenters wrote this.
posted by one more dead town's last parade at 11:55 AM on January 9, 2012 [6 favorites]


Corporate personhood has a long history, at least related to the age of the United States. The scope of that personhood was expanded with the Citizens United case (though the shift has been a gradual one).
posted by filthy light thief at 11:58 AM on January 9, 2012 [4 favorites]


Pointless, except as a form of protest. There's too much money & power backing the stupefying results of Citizens United v. FEC for such open rebellion to stand.

And that's a damned shame.
Well, the judges are typically not quite as corrupt - they don't need the cash for anything. Of course with Gini Thomas running around raising funds, who knows.

One thing is that it's cool that Steven Colbert is running around raising awareness of just how this system works. He's reaching a ton of people by dramatically illustrating just how the system works.
posted by delmoi at 11:59 AM on January 9, 2012 [1 favorite]


Here's the continuation of the pullquote:
Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

Having said all this, I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling—in the same way that this Court demands obedience to its rulings, like them or not.
posted by Kadin2048 at 11:59 AM on January 9, 2012 [14 favorites]


Is this something you'd need a functioning Rule of Law to understand?
posted by swift at 12:00 PM on January 9, 2012 [18 favorites]


I really don't see the difference between, say, Bill Gates spending a billion dollars as a private citizen to support a candidate versus Bill Gates forming a corporation that spends a billion dollars as a corporation to support a candidate. It seems it should either be OK for outside people to spend money supporting candidates or they shouldn't, but I don't see the distinction between people and corporations.
posted by gyc at 12:02 PM on January 9, 2012 [1 favorite]


Also, Montana is just the first to make a move on this. "The New York City Council has just passed a similar resolution, echoing measures passed in Los Angeles, Oakland, Albany and Boulder."
posted by filthy light thief at 12:03 PM on January 9, 2012 [3 favorites]


Correction: first court.
posted by filthy light thief at 12:03 PM on January 9, 2012


When discussions about controversial Supreme Court cases come up, I always wonder how many participants have actually read the decision under discussion.
posted by cribcage at 12:06 PM on January 9, 2012 [2 favorites]


I don't see the distinction between people and corporations.

Bill Gates' net worth is $56 billion, and he's the richest person (or very close to it) in the world. Microsoft's market cap is $233.56 billion, and it is not the most valuable company in the world.

Corporations command more resources in our economy than individuals do. So by opening up politics to corporations, you are really opening the floodgates to a ton of cash, to the point where unless you are Bill Gates (or within a few hundred of the top of the heap) you are not going to have much in the way of influence.

Also, people are much easier to punish than corporations, and corporations can be set up to do things that virtually any person wouldn't do under their own name.
posted by Kadin2048 at 12:07 PM on January 9, 2012 [26 favorites]


It seems it should either be OK for outside people to spend money supporting candidates or they shouldn't, but I don't see the distinction between people and corporations.

I don't neccesarly object to a corporation being _allowed_ to spend money for a campaign, but I object strongly to the notiion that they have the "right" to spend money on a campaign.
posted by madajb at 12:08 PM on January 9, 2012 [2 favorites]


I think a lot of Republicans are going to be awfully pissed off at Citizen United after this primary campaign. There's a lot of shady shit going on with Gingrich's and Romney's PACs and it's just getting worse as it goes on.
posted by empath at 12:08 PM on January 9, 2012 [8 favorites]


Kadin2048: Corporations command more resources in our economy than individuals do. So by opening up politics to corporations, you are really opening the floodgates to a ton of cash, to the point where unless you are Bill Gates (or within a few hundred of the top of the heap) you are not going to have much in the way of influence.

Also, people are much easier to punish than corporations, and corporations can be set up to do things that virtually any person wouldn't do under their own name.


These points pair up well, or terribly, depending on how you look at it. If someone had a lot of money to throw around, but could easily be punished for illegal practices, the advertising game is unbalanced, but not underhanded. Or if the funding is limited, but the ability to prosecute the "entity" is harder, there is a chance for shady goings-on, but they're limited. Combine the two, and it's really scary.
posted by filthy light thief at 12:13 PM on January 9, 2012 [1 favorite]


I really don't see the difference between, say, Bill Gates spending a billion dollars as a private citizen to support a candidate versus Bill Gates forming a corporation that spends a billion dollars as a corporation to support a candidate. It seems it should either be OK for outside people to spend money supporting candidates or they shouldn't, but I don't see the distinction between people and corporations.

First, Bill Gates is a person. If he spent money on a campaign (provided it wasn't through a SuperPAC), you would know he contributed the money. A corporate donation essentially removes another layer of information. Not healthy in a democracy, IMO.

Second, Citizens United basically says money=speech. Therefore, SuperPacs are okey dokey. See above.

Third, Citizens United is a complete, total, deliberate, and cynical misreading of corporate "personhood". Corporate personhood is/was a legal fiction used to make the laws regarding corporations wieldy and explainable. Corporations are not persons, have never been persons, and wer never intended to be persons.
posted by Benny Andajetz at 12:23 PM on January 9, 2012 [3 favorites]


It seems it should either be OK for outside people to spend money supporting candidates or they shouldn't, but I don't see the distinction between people and corporations.

If we could somehow insure that the shareholders of that corporation all received a say equal to their proportional ownership of the company in how the corporation allocated it's "political speech" via those contribution, I don't think I'd feel a need to make the distinction either.I don't mean that they all get to vote on it. Let's say the CEO has decided that the company will contribute $1 million to politics. If I own 10% of the company, I should get to decide where $100,000 of that goes. At it is, the CEO, the board, or some other small group in charge of the company get to decide what to do with my resources (the portion of the company I own).

To restate what others have said. As it stands now, Bill Gates, personal citizen, can spend his own money to influence politics AND Bill Gates, CEO (for the sake of this example), can spend Microsoft's money for the same purpose even though he doesn't own 100% of the company.
posted by VTX at 12:23 PM on January 9, 2012


I don't think that's true, as unsurprising as it would be.

Ah, you're right. I could've sworn I read that they were related, but in fact CU threatened the other organization with a trademark suit (pardon the Washington Times link).
posted by jedicus at 12:24 PM on January 9, 2012


OK, here's the problem.

If associations of persons in a corporation don't have free speech, then the Sierra Club and Planned Parenthood don't have them either.

The problem is money=speech. Its simply not true.

If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.
posted by Ironmouth at 12:26 PM on January 9, 2012 [4 favorites]


I really don't see the difference between, say, Bill Gates spending a billion dollars as a private citizen to support a candidate versus Bill Gates forming a corporation that spends a billion dollars as a corporation to support a candidate. It seems it should either be OK for outside people to spend money supporting candidates or they shouldn't, but I don't see the distinction between people and corporations.

I'm Dutch and I own stock in Microsoft, but not in Bill Gates. Only American citizens can donate to American political campaigns, but an 'American' company with global operations, a Hungarian CEO, and a board controlled by the Mitsubishi Bank, HSBC, and Deutsche Bank can donate to whoever it wants.
posted by atrazine at 12:26 PM on January 9, 2012 [21 favorites]


All this stuff about corporations not being people is a lot of nonsense and a massive red herring, by the way. The word corporation literally refers to the creation of a legal person that has an existence separate from its owners, so a corporation has legal personhood by definition.

The problem is in the interpretation of this in the United States to mean that all rights granted to natural people are also granted to corporations, which is not in any way inevitable or obvious when you get beyond contract law.

Of course, the over-riding problem is the classification of political donations as protected speech.
posted by atrazine at 12:32 PM on January 9, 2012 [13 favorites]


The problem is in the interpretation of this in the United States to mean that all rights granted to natural people are also granted to corporations, which is not in any way inevitable or obvious when you get beyond contract law.

The problem is applying the 14th amendment to corporations, which is fucking absurd.
posted by empath at 12:35 PM on January 9, 2012 [6 favorites]


If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.

Well, that would be the other extreme, but it seems like reductio ad absurdum to me. Nobody is saying we need to take corporate non-personhood to that level.

Corporations are a legal fiction, and as such we can choose to imbue them with whatever rights we want to. One extreme is to make them literally synthetic persons, with all the same rights that a natural person would. But we could just give them certain rights while reserving others for natural persons. E.g., they could have the right to own property and enter into agreements, sue and be sued, but not free speech.

The way you'd accomplish this would be to argue that the Constitution's limits on government are based on some sort of natural law understanding of fundamental, human rights. Corporations, as mere legal fictions, do not have any underlying fundamental rights that the Constitution needs protect. Thus it does not apply to them. Thus the only rights they have are the ones granted to them by statute. And we could write the statutes to give them whatever rights we wanted to, and are deemed beneficial for them to have.

I'm not anti-corporation in any way (actually I think it's a pretty important invention, perhaps one of the most important legal invention in the past century or so), but there's no reason that the idea of 'corporate personhood' needs to be all-or-nothing.
posted by Kadin2048 at 12:38 PM on January 9, 2012 [19 favorites]


This:
"The over-riding problem is the classification of political donations as protected speech."

If money=speech, then a rich man has more speech than a poor man. One man, one vote is enshrined as holy, yet one rich man can have a lot more than one vote's worth of influence.

And if corporations truly are people, then I am going to find a very sexy corporation, have sex with it, and spawn many highly attractive mutant human-corporation offspring with which to take over the world. Consider yourselves warned.
posted by jetsetsc at 12:42 PM on January 9, 2012 [2 favorites]


If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.

As a programmer, I have to say this is a situation that cries out for a common interface ITortfeasor that both Corporation and Person implement. It doesn't mean that Corporation should inherit from Person. It's lazy programming to do so, and now we pay the price for that laziness.
posted by Jpfed at 12:46 PM on January 9, 2012 [38 favorites]


Maybe this wouldn't work like I am thinking, but here goes.

If corporations are people, then how about we just remove "limited liability" protection.
posted by Dark Messiah at 12:47 PM on January 9, 2012 [2 favorites]


Well, that would be the other extreme, but it seems like reductio ad absurdum to me. Nobody is saying we need to take corporate non-personhood to that level.

I think some people may imply that, without fully understanding the legal nature of corporations as "people", which I'd imagine is what Ironmouth is getting at. I agree that it doesn't need to be all or nothing, and indeed such an approach doesn't make sense.

I think our best chance for righting this boat is throwing support/action behind a Constitutional amendment, either one already proposed, or by convincing representatives to craft one which better accomplishes the intended goal. To me, now is the time to get politically active behind a Constitutional amendment, given the inevitable absurdity that is now being witnessed in action as the result of the Citizens United decision. I think the support numbers are there, if the population can be effectively galvanized behind the efforts. And the support numbers seem likely to grow.
posted by Brak at 12:47 PM on January 9, 2012 [2 favorites]




And if corporations truly are people, then I am going to find a very sexy corporation, have sex with it, and spawn many highly attractive mutant human-corporation offspring with which to take over the world.

i don't think you understand how sex with corporations work - free clue: there's no way what you will be doing with that very sexy corporation will result in offspring
posted by pyramid termite at 12:48 PM on January 9, 2012


pyramid termite: "i don't think you understand how sex with corporations work -"

Well, I know most of us have at one time or another been fucked *by* a corporation.

literal, figurative, whatever...
posted by notsnot at 12:50 PM on January 9, 2012 [3 favorites]


Oh, and as they say, I'll believe corporations are people when Texas executes one.
posted by notsnot at 12:52 PM on January 9, 2012 [18 favorites]


Third, Citizens United is a complete, total, deliberate, and cynical misreading of corporate "personhood". Corporate personhood is/was a legal fiction used to make the laws regarding corporations wieldy and explainable. Corporations are not persons, have never been persons, and were never intended to be persons.

They are groups of persons. And there's two ways in First Amendment jurisprudence to cover it--because it also covers the right of people to read what others have to say.

Citizens United doesn't use the fiction of the artificial person to come to its result. It, in fact, relies on First Nat'l Bank of Boston v. Belotti, 435 U.S. 765 (1978), which held that corporations do have free speech rights. This is a long line of cases. It only became a problem when restrictions on donations, in kind and otherwise, were included.

Other cases that have so held include: The Court has recognized that First Amendment protection extends to coprorations in the following additional decisions: Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684(1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). Grosjean v. American Press Co., 297 U. S. 233, 244 (1936) extends this explicitly to political speech.

Otherwise, how would the NAACP, the Sierra Club and Planned Parenthood be able to have free and protected speech, let alone the New York Times Company?

The problem is money=speech.
posted by Ironmouth at 12:57 PM on January 9, 2012 [11 favorites]


I think our best chance for righting this boat is throwing support/action behind a Constitutional amendment, either one already proposed, or by convincing representatives to craft one which better accomplishes the intended goal. To me, now is the time to get politically active behind a Constitutional amendment, given the inevitable absurdity that is now being witnessed in action as the result of the Citizens United decision. I think the support numbers are there, if the population can be effectively galvanized behind the efforts. And the support numbers seem likely to grow.

Agreed. We need to put this one away, hard. The Supremes could say nothing about it.
posted by Ironmouth at 12:58 PM on January 9, 2012 [4 favorites]


Alaska is pre-legislative session. One of the bills already submitted is to reject the idea that corporations are people.
posted by Foam Pants at 1:00 PM on January 9, 2012


The problem with our current system is all the damned middle men. Bribery is an expensive form of government to maintain in a down economy. We should just do away with all of the PACs and lobbyists, and let corporations go ahead and run for office, directly. Sure, it'll be weird at first when Coca Cola is elected our first virtual president, but when PepsiCo inevitably holds congress and the Supreme Court winds up composed mostly of old, irrelevant storefronts holding onto the last vestiges of a dying business model (e.g., Chief Justice Blockbuster), you'll see the wisdom of letting the corporations get mired in the same quicksand we shart our politicians into. Couldn't happen to a more deserving bucket of bastards.
posted by It's Raining Florence Henderson at 1:11 PM on January 9, 2012 [9 favorites]


The ironic thing is that Citizens United has about completely destroyed the Republican party -- if you want to know why their primary looks so much like a clown convention, it has to do with buckets of money available to people whose funding would normally have dried up by now. This has destroyed the party's traditional lockstep solidarity and as far as I can see is going to make it impossible for them to win the White House this year.

Some of the people who foisted CU on us thinking it would cement their control over the levers of power might be inclined to run it back a bit once the clue bites them.
posted by localroger at 1:15 PM on January 9, 2012 [12 favorites]


If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.

Irrespective of anything else, this is 100% pure bullshit, well unless you imagine we'll revoke their power to own property, which I've never heard anyone advocate.

Exception : You'll occasionally hear people argue that organizations shouldn't own intellectual property because they lack their own independent intellects, but often such arguments hinge upon the underlying arguments that patents and copyrights need to be severely restricted or abolished in most cases.
posted by jeffburdges at 1:25 PM on January 9, 2012 [2 favorites]


You will repeatedly hear Mitt Romney saying "Corporations are people, my friend."
posted by twoleftfeet at 1:30 PM on January 9, 2012


And if corporations truly are people, then I am going to find a very sexy corporation, have sex with it, and spawn many highly attractive mutant human-corporation offspring with which to take over the world.

You have that wrong. If corporations are people, they don't have ordinary sex. Instead, there are corporate mergers, which is marriage between corporations, and is generally favored by Republicans. Also, if corporations are people then they must have a gender. Most corporations are male-dominated, so most corporations are men. Therefore, most Republicans favor marriage between a man and a man.

It's inescapable logic. Most Republicans favor gay marriage. QED.
posted by twoleftfeet at 1:37 PM on January 9, 2012 [14 favorites]


Serious question: how much impact do you think the Supreme Court's decision Citizens United v FEV had? How effective was the law it overturned, BCRA? How much money was it keeping out of politics, and how much extra money do you think made its way into politics in 2010, or will make its way into politics in 2012?

I have read the entire 183 page decision and I think the legal questions are interesting. But what's at stake substantively?
posted by anotherpanacea at 1:40 PM on January 9, 2012


Please someone cite me to a U.S. Supreme Court case (fuck it, an appellate court case even) that says unequivocally or close to it that the rights of a corporation are coterminous with those of natural persons. Actually, don't waste your time, because it doesn't exist.
posted by gagglezoomer at 2:03 PM on January 9, 2012


Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

One revoked corporate charter, that's all we need. Get your head out of your ass, Delaware.
posted by Mister Fabulous at 2:04 PM on January 9, 2012


Surely there's no need for a corporation to be a person for it to sue or be sue-able, just sue the CEO and board. "I make the following claims against Jack B. Nimble, Jack B. Quick, etc for wrongful actions committed by themselves and at their behest by employees and agents of HellMart ..." Granted, it does make being a corporate CEO considerably more risky. They might have to be paid hundreds of millions of dollars to take that kind of risk.
posted by aeschenkarnos at 2:09 PM on January 9, 2012 [3 favorites]




It's called "bribery" when poor people try to influence tiny parts of the system, but "free speech" when corporations and the wealthy bankroll the entire system itself.

For example, if you give cash to a police officer to influence his decision on whether or not to arrest you, you'll be charged with bribery. Same thing if you offer cash to the prosecutor, the jury, or judge.

But you can offer cash to the politicians who write the laws that police officers enforce, prosecutors prosecute, and judges judge.

Equating "money" to "free speech" undermines (if not entirely destroys) the more important equation of "one person, one vote". True, we all still get our individual votes, but the unavoidable reality is that money is the strongest determining factor for electoral success:
Money Wins Presidency and 9 of 10 Congressional Races in Priciest U.S. Election Ever

"In 93 percent of House of Representatives races and 94 percent of Senate races that had been decided by mid-day Nov. 5, the candidate who spent the most money ended up winning" in the 2008 election
Citizens United was the fork stuck in our democracy.
posted by Davenhill at 2:15 PM on January 9, 2012 [9 favorites]


Otherwise, how would the NAACP, the Sierra Club and Planned Parenthood be able to have free and protected speech, let alone the New York Times Company?

You can protect it with a statute instead of the 14th and 1st amendments.
posted by empath at 2:17 PM on January 9, 2012 [1 favorite]


But then a Mitt Romney led government could just as easily revoke that statute for 'political' corporations (to be selectively enforced against leftist causes). All the printing presses (and equivalents) are owned by corporations; if they have no constitutional right to free speech, then that would be a serious expansion of the government's power to censor (you, as a natural person, can say whatever you want so long as you use no machinery owned by a corporation to do it).
posted by Pyry at 2:24 PM on January 9, 2012 [1 favorite]


All the printing presses (and equivalents) are owned by corporations; if they have no constitutional right to free speech, then that would be a serious expansion of the government's power to censor (you, as a natural person, can say whatever you want so long as you use no machinery owned by a corporation to do it).

Free speech is a core tenet of American social philosophy. Certainly Americans are sensible enough to be able to protect free speech without making corporations people.
posted by Benny Andajetz at 2:31 PM on January 9, 2012 [3 favorites]


I'm still waiting on the court decision holding that C-Corp governance structure meets the requirements of Art. 4 Section 1.
posted by gauche at 2:35 PM on January 9, 2012


Free speech is a core tenet of American social philosophy. Certainly Americans are sensible enough to be able to protect free speech without making corporations people.

Prior, until the 14th amendment, they had no problem doing this. I don't know why, after the 14th amendment, it suddenly became essential that they be persons.
posted by empath at 2:46 PM on January 9, 2012 [3 favorites]


I believe that Citizen's United needs to be addressed with a Constitutional amendment. I posted this in another thread, and I'll do so again here:

Bernie Sanders Proposed Amendment Petition

I like this amendment, as it would go a long way towards ameliorating the influence of Big Money on the political process without necessarily impairing the utility of corporate entities. Plus it addresses Ironmouth's concerns re Planned Parenthood, the ACLU et al by addressing specifically for profit entites and explicitely giving Congress the authority to regulate campaign financing.
posted by JKevinKing at 2:47 PM on January 9, 2012 [1 favorite]


Free speech is a core tenet of American social philosophy.

Which is why it's there in the constitution where it can't be easily tampered with. Which parts of the bill of rights do you think shouldn't apply to corporations? Empath mentioned the 14th, but if that doesn't apply to corporations, that means the government would be able to (for instance) dissolve Amnesty International on a whim.
posted by Pyry at 2:47 PM on January 9, 2012


that means the government would be able to (for instance) dissolve Amnesty International on a whim.

Where do you get this? Corporate personhood isn't what constrains the government from arbitrarily dismantling organizations -- they couldn't bust up my local, not-incorporated book discussion club now, for example, without some specific legal grounds.
posted by George_Spiggott at 2:55 PM on January 9, 2012 [2 favorites]


I feel like the level of uniform ignorance about the concept of "corporate personhood" among liberals is the equivalent of the hard right's misconception that Roe v. Wade means you can have an abortion two days before your baby is due 'cause you just felt like it.
posted by gagglezoomer at 2:58 PM on January 9, 2012 [2 favorites]


If the 14th amendment protections for corporations are redundant, then what's the big fuss about letting them be protected twice? Is the objection just to the word 'person'?
posted by Pyry at 3:05 PM on January 9, 2012


Otherwise, how would the NAACP, the Sierra Club and Planned Parenthood be able to have free and protected speech, let alone the New York Times Company?

You can protect it with a statute instead of the 14th and 1st amendments.


Or, and this is crazy but it just might work: the NAACP, Sierra Club, Planned Parenthood, and the New York Times Company might be able to find a press secretary, spokesperson, PR director, reporter, editor, or some other literal human person willing to exercise their free speech rights on its behalf, perhaps as one of the duties of his job
posted by cobra_high_tigers at 3:05 PM on January 9, 2012 [1 favorite]


I feel like this should be carved in stone on some sort of public edifice.

Perhaps that can be part of a Constitutional Amendment?
posted by rough ashlar at 3:06 PM on January 9, 2012 [1 favorite]


One thing that I find stunning -- among many, many stunning things -- in the discussion of corporate personhood is that the earliest Court decisions don't give us any test for personhood: they simply declare that corporations are persons for certain purposes. No subsequent case that I know of has given a test for personhood or applied one to corporations.
posted by Jonathan Livengood at 3:07 PM on January 9, 2012


I feel like the level of uniform ignorance about the concept of "corporate personhood" among liberals is the equivalent of the hard right's misconception that Roe v. Wade means you can have an abortion two days before your baby is due 'cause you just felt like it.

I know a lot of liberals who are opposed to "corporate personhood" and aren't ignorant about it. Most aren't in favor of making it so that corporations can't own property or be sued, they're just more in favor of accomplishing that end through a means like inserting such provisions into state corporations statutes, rather than by pretending they're entitled to the same rights as a living citizen under the U.S. Constitution.
posted by cobra_high_tigers at 3:09 PM on January 9, 2012 [2 favorites]


One thing that I find stunning -- among many, many stunning things -- in the discussion of corporate personhood is that the earliest Court decisions don't give us any test for personhood: they simply declare that corporations are persons for certain purposes. No subsequent case that I know of has given a test for personhood or applied one to corporations.

And the actual precedent that the whole edifice is built on is bullshit.
posted by empath at 3:10 PM on January 9, 2012 [1 favorite]


If a corporation can be bought and sold, it is not a person because slavery is illegal. If a corporation can be dissolved it is not a person because murder is illegal.
posted by George_Spiggott at 3:11 PM on January 9, 2012 [5 favorites]


If we get rid of artificial personhood for corporations, we can't sue corporations for anything.

Gosh, then the people who made decisions in the Corporations would be sued.
posted by rough ashlar at 3:11 PM on January 9, 2012 [4 favorites]


gagglezoomer,

How are liberals ingnorant about the concept of corporate personhood?
posted by JKevinKing at 3:11 PM on January 9, 2012


If associations of persons in a corporation don't have free speech, then the Sierra Club and Planned Parenthood don't have them either.

In the ideal case where non-humans do not have a First Amendment right to free speech, why does Planned Prenthood need the same free-speech rights as a real human being? PP should not be allowed to give money to political candidates or parties. Neither should Microsoft, nor churches. The various people associated with an organization have the right to spend their own money as they see fit and support whoever they like. The organization should not be able to spend its money to do that.

Corporations can have Bill of Rights protections when we can thrown them in jail for breaking laws. Or when we humans can escape imprisonment for our crimes by paying a fine of about 1% of our revenues.

(I am a member of Planned Parenthood.)
posted by phliar at 3:13 PM on January 9, 2012 [3 favorites]


I know a lot of liberals who are opposed to "corporate personhood" and aren't ignorant about it. Most aren't in favor of making it so that corporations can't own property or be sued, they're just more in favor of accomplishing that end through a means like inserting such provisions into state corporations statutes, rather than by pretending they're entitled to the same rights as a living citizen under the U.S. Constitution.

Ok, but if you don't want to actually change what corporations can do, just move it from the constitution to statues, then what's the point? Again, is the objection just to the word 'person', or do you actually want to restrict corporations in some specific way that natural person's wouldn't be? Honestly, this sounds a lot like the conservative argument against gay marriage in favor of civil unions: give them all the same rights, just don't call it [marriage / personhood].
posted by Pyry at 3:14 PM on January 9, 2012


uniform ignorance about the concept of "corporate personhood" among liberals

Meh. My ignorance is dress casual, at best.
posted by It's Raining Florence Henderson at 3:15 PM on January 9, 2012 [4 favorites]


The 1st Amendment does not specify what "persons" may do. Rather, it restricts what Congress may do.
posted by anotherpanacea at 3:20 PM on January 9, 2012 [1 favorite]


The 1st Amendment does not specify what "persons" may do. Rather, it restricts what Congress may do.

Sure, but if only persons are the sorts of things that can be religiously devout or speak or use presses or assemble or petition, then Congress is only restricted in what it does vis-a-vis persons.
posted by Jonathan Livengood at 3:24 PM on January 9, 2012


Otherwise, how would the NAACP, the Sierra Club and Planned Parenthood be able to have free and protected speech, let alone the New York Times Company?

You can protect it with a statute instead of the 14th and 1st amendments.


Citzens United is a non profit corporation. Its in the decision.
posted by Ironmouth at 3:28 PM on January 9, 2012


Sure, but if only persons are the sorts of things that can be religiously devout or speak or use presses or assemble or petition, then Congress is only restricted in what it does vis-a-vis persons.

One might wish to read up on Coughlin

Religious, used a press and Congress wasn't the 'force' that stopped him.
posted by rough ashlar at 3:29 PM on January 9, 2012


Do other countries also use the concept of corporate personhood to grant rights to corporations? Or are there other models in use?
posted by wemayfreeze at 3:30 PM on January 9, 2012 [1 favorite]


Ok, but if you don't want to actually change what corporations can do, just move it from the constitution to statues, then what's the point?

Well, because we do want to actually change what corporations can do. The point is that the Constitution recognizes certain rights belonging to people that come with very strong protections against governmental interference, and many of us don't think that it's necessary or desirable for limited liability collections of money and assets to receive those same protections.
posted by cobra_high_tigers at 3:30 PM on January 9, 2012


Ok, but if you don't want to actually change what corporations can do, just move it from the constitution to statues, then what's the point?

I think the point here is that there are some things that most everyone wants corporations to be able to do: own property, pay taxes, sue and be sued, vividly imagine purple squares (okay, not that one). There are some things that most everyone does not want corporations to do: directly vote, count for census purposes. And there are some things that people disagree about: funding political campaigns.

There are two related problems. One is identifying money with speech. The other is using personhood, which grants a whole lot of rights, to guarantee a smallish subset of those rights for corporations. As I see it, the left wants a bright line to be drawn so that we don't get a steady increase in the person-like rights of corporations, and they want the line drawn on the side of "no political contributions from corporations."
posted by Jonathan Livengood at 3:32 PM on January 9, 2012 [4 favorites]


How are liberals ingnorant about the concept of corporate personhood?

Because they think that the law treats natural persons and corporations the same.
posted by gagglezoomer at 3:33 PM on January 9, 2012


rough,

Yes, other branches have interfered with basic human liberties. And I would love to see the FCC go away. But anyway, I was only addressing the text of the First Amendment, which does not mention the executive branch.
posted by Jonathan Livengood at 3:34 PM on January 9, 2012


Or, and this is crazy but it just might work: the NAACP, Sierra Club, Planned Parenthood, and the New York Times Company might be able to find a press secretary, spokesperson, PR director, reporter, editor, or some other literal human person willing to exercise their free speech rights on its behalf, perhaps as one of the duties of his job

You can enjoin a corporation from doing that. If you read the opinion, there is a lot of discussion about the different parts of the speech process. The problem is you can attack any section of that process. Some of it doesn't involve a person doing anything.

And how do you protect an entire newspaper like the NY Times Co.? Seriously, you could enjoin delivery of news print.

There isn't a lot of thought behind the reflexive attack on the idea of corporate personhood. Its an idea which is designed to get people mad about a real problem. Its a terrible solution to that problem, however. Corporations should be allowed to say what they want. No doubt about it. I think that GE wants to run a commercial or even endorse a candidate, fine.

But they should have to reveal their donations to any political group and be subject to the same political contribution limits that you or I are. Money does not equal speech. But this crap about somehow abolishing corporate personhood? Dumb, dumb, dumb. And the more its talked about the more dumb ideas come up to get around the problems that it creates.
posted by Ironmouth at 3:35 PM on January 9, 2012 [2 favorites]


Citzens United is a non profit corporation. Its in the decision.

I don't see what being non-profit has to do with anything. I want all corporation's speech to be regulated by law.
posted by empath at 3:37 PM on January 9, 2012 [1 favorite]


Please someone cite me to a U.S. Supreme Court case (fuck it, an appellate court case even) that says unequivocally or close to it that the rights of a corporation are coterminous with those of natural persons. Actually, don't waste your time, because it doesn't exist.

Dartmouth College v. Woodward, established corporations have the same rights as natural persons to contract and to enforce contracts.

Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet, saw the court grant the same protections to corporate-owned property as to property owned by natural persons.
"The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men."[
-Chief Justice Marshall,

Santa Clara County v. Southern Pacific Railroad
, established that corporations have the same rights as natural persons in regards to the 14th amendment - that the equal protection clause guarantees constitutional protections to corporations in addition to natural persons

Citizen's United affirmed that corporations have first amendment rights to make political expenditures.

1 U.S.C. §1:
In determining the meaning of any Act of Congress, unless the context indicates otherwise-- the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
So, given that the entire Constitution does not contain the word "Corporation" it seems that unless specified.. Corporations are indeed people as far as law is concerned.
posted by edgeways at 3:38 PM on January 9, 2012 [1 favorite]


There are two related problems. One is identifying money with speech. The other is using personhood, which grants a whole lot of rights, to guarantee a smallish subset of those rights for corporations. As I see it, the left wants a bright line to be drawn so that we don't get a steady increase in the person-like rights of corporations, and they want the line drawn on the side of "no political contributions from corporations."

Citizens United, like Planned Parenthood, is a non-profit corporation. Setting up some sort of bizzare statutory scheme (how do you do it for 50 separate states!) would do nothing in this case.

The idea that Planned Parenthood can't make political donations is stupid and terrible and I oppose it.
posted by Ironmouth at 3:38 PM on January 9, 2012


Citzens United is a non profit corporation. Its in the decision.

I don't see what being non-profit has to do with anything. I want all corporation's speech to be regulated by law.


© 1999-2012 MetaFilter Network Inc.
posted by Ironmouth at 3:39 PM on January 9, 2012


But they should have to reveal their donations to any political group and be subject to the same political contribution limits that you or I are. Money does not equal speech. But this crap about somehow abolishing corporate personhood? Dumb, dumb, dumb. And the more its talked about the more dumb ideas come up to get around the problems that it creates.

Ironmouth:

You are right - the core issue is money=speech.

The problem with corporate personhood as defined today is that the Citizens United ruling literally used the reasoning that a corporation is no different than a living, breathing human. It's one thing to call a corporation a person as a means to implement law. It's another thing altogether to buy the fiction.
posted by Benny Andajetz at 3:42 PM on January 9, 2012


The idea that Planned Parenthood can't make political donations is stupid and terrible and I oppose it.

If that's the way you feel about it, then I guess you stand on your barricade, and I'll stand on mine.

Seriously, though, I would like to see some argument beyond simple assertion that the idea of outlawing political contributions from associations of people is "stupid and terrible." What tragedy do you envision if political contributions are only allowed to be given by individuals, not associations of individuals? Often you have good arguments that end up convincing or partially convincing me. I would like to know what your reasons are in this case.
posted by Jonathan Livengood at 3:43 PM on January 9, 2012 [1 favorite]


And how do you protect an entire newspaper like the NY Times Co.? Seriously, you could enjoin delivery of news print.

Ironmouth, are you arguing that if a court enjoined delivery of the papers, the attorneys who represent the NY Times Co. could take action to defend the free speech rights of the corporation itself, but it would be impossible for them to take similar action to defend the free speech rights of the reporters whose articles appeared in the paper?

I'm not saying the switch would be as easy as find/replace "New York Times Co." to "Krugman, Brooks", etc. in the caption and file the sucker, but seriously. Their counsel couldn't represent a class of individual plaintiffs whose literal, actual speech is being restricted, instead of the corporation whose conceptual "speech" is?
posted by cobra_high_tigers at 3:47 PM on January 9, 2012 [1 favorite]


And how do you protect an entire newspaper like the NY Times Co.? Seriously, you could enjoin delivery of news print.

The NYT is protected under the First Amendment's freedom of the press clause, regardless of its particular corporate form.
posted by thewittyname at 3:48 PM on January 9, 2012 [3 favorites]


The idea that Planned Parenthood can't make political donations is stupid and terrible and I oppose it.

Why would any person (living or corporate) make a political donation except as a means to influence policy and government?

Why do people insist this isn't straight up bribery? Why are people so shit-scared to use the word "corruption", and insist political donations are just made for the pure joy of it?
posted by Jimbob at 4:04 PM on January 9, 2012 [4 favorites]


The NYT is protected under the First Amendment's freedom of the press clause, regardless of its particular corporate form.

Why should "abridging the freedom of speech" apply only to natural persons but "or of the press" apply regardless of corporate form?

I've long thought that the "money is not speech" argument is much stronger than the "corporate personhood" argument, which latter only leads to people arbitrarily cherry-picking what rights they want corporations to have, and what rights they don't. Presumably you're all okay with corporations suing and being sued in court. And I'm guessing people don't want the police to be able to burst into office buildings without warrants at the slightest provocation. And so forth. But that one over there that leads to results you don't like, take that one away. Ugh.

Let's instead talk about how a $5 million donation to a Koch Industries PAC is not the kind of "political speech" that was intended to be protected by the First Amendment.
posted by eugenen at 4:04 PM on January 9, 2012 [1 favorite]


Ironmouth, yes, it is a useful legal fiction that corporations are people. The problem arises from people pushing the fiction too far. But if for some reason the fiction were abolished, there is no reason a different fiction could not be adopted, one that wouldn't find itself so liable to be interpreted in crazy ways.
posted by JHarris at 4:05 PM on January 9, 2012


there is no reason a different fiction could not be adopted, one that wouldn't find itself so liable to be interpreted in crazy ways.

I'm all ears.
posted by eugenen at 4:06 PM on January 9, 2012


How are liberals ingnorant about the concept of corporate personhood?

Because they think that the law treats natural persons and corporations the same.


Not this liberal. This liberal thinks the law treats natural citizens much worse than corporations.
posted by It's Raining Florence Henderson at 4:13 PM on January 9, 2012 [5 favorites]


Ironmouth,

I assure you that I have given this a lot of thought, and as an attorney who has practiced corporate law I am well aware of the issues involved. I agree with Jonathan Livengood that there is no problem with limiting contributions to political campaigns to individuals.

I don't think it's a dumb idea at all. As I'm sure you know, corporations are legal fictions created by statute for the public good by limiting liability of investors in a business to their investment. This way investors do not have to worry about losing unrelated assets if the business they're investing in loses money for whatever reason.

If a CEO, a director, or a shareholder wants to make a political stement, by all means, let them -- they have the right to. But they should not be able to use a corporate structure as a fig leaf to distort the political process by gaining outsized influence on it. This is decidedly against the public interest.
posted by JKevinKing at 4:22 PM on January 9, 2012 [6 favorites]


I've long thought that the "money is not speech" argument is much stronger than the "corporate personhood" argument, which latter only leads to people arbitrarily cherry-picking what rights they want corporations to have, and what rights they don't.

The problem is that they are intertwined; SCOTUS used the "personhood" argument as the reason money=speech is OK. They reasoned that humans are allowed to give their money to PACS and so corporations should be able to, also.
posted by Benny Andajetz at 4:31 PM on January 9, 2012


Seriously, though, I would like to see some argument beyond simple assertion that the idea of outlawing political contributions from associations of people is "stupid and terrible." What tragedy do you envision if political contributions are only allowed to be given by individuals, not associations of individuals? Often you have good arguments that end up convincing or partially convincing me. I would like to know what your reasons are in this case.

I'm ok with that. I'm opposed to doing that by saying corporate entities don't have free speech rights. I'm great with contribution limits. The issue is money=speech. They've used the First Amendment as a vehicle to strike down contribution limits.
posted by Ironmouth at 4:40 PM on January 9, 2012


The original argument was that corporations need to be treated as persons for certain purposes. This makes sense; corporations need to be able to own land, to sue and be sued, and so on.

The unbridled corporatism that exploded in the late 19th century was, however, a relatively new thing and the law didn't react well to it. Historically up to that point corporations had been chartered with specific functions in mind. It was really the railroads that got that thinking changed, because railroads at the time touched every other enterprise. It was a railroad executive who made the famous "mistake" enshrining literal corporate personhood in a Supreme Court decision even though none of the actual justices had used that language.

The biggest problem I have with corporate personhood is that while corporations enjoy all the rights I have to privacy of their communications, they don't face the risk I do of imprisonment when they break the law. That imbalance has to be addressed, and aggressively since the corporation starts off with an advantage due to the vast resources it can command compared to a typical individual.

There might also be something to be said for going back to a much older model of how corporations are chartered, where their functions are things like "import tea" or "make microchips" instead of "make as much money as possible." But that's a conversation that hasn't even been properly started.
posted by localroger at 4:42 PM on January 9, 2012 [7 favorites]


I'm Gonna Marry GE
posted by tspae at 4:46 PM on January 9, 2012


Can Koch Industries buy a newspaper and the say whatever it wants?

Be careful with distinguishing money and speech. Money is not an abortion, either, but I don't think we'd want women to have a right to an abortion but not the right to spend money on the medical services and equipment necessary to terminate a preganancy.

It costs money to speak loudly enough for 330 million people to hear you. Restricting spending on speech restricts speech.
posted by anotherpanacea at 4:49 PM on January 9, 2012 [2 favorites]


What I really don't get is how the whole "unlimited donations" thing came about. I mean, OK, let's assume that Koch Industries really does have a right to make a donation just like me, but if I made a donation of more than, what, $5,000 or something like that, I would be in violation of the law, wouldn't I?

I understand I could, theoretically, donate to more than one candidate and more than one PAC, but I thought there was still some aggregate limit to what I could actually donate total. I think something like $100,000 over a biennium, or something? Seems like it would hardly be worth their time.
posted by Flunkie at 4:58 PM on January 9, 2012


It costs money to speak loudly enough for 330 million people to hear you. Restricting spending on speech restricts speech.

Restricting or eliminating contributions from election campaigns makes the process of electing people for public office far less of a money game and more of a function in the public interest. I favor eliminating private money from the process and switching to publicly funded campaigns.
posted by krinklyfig at 5:11 PM on January 9, 2012 [4 favorites]


It costs money to speak loudly enough for 330 million people to hear you. Restricting spending on speech restricts speech.

This also ensures that the most rich and powerful have the biggest megaphone and the most influence. It restricts the speech and influence of those without money. Maybe this is OK in the commercial world, but it's highly corrupting in the political arena and in areas of public interest.
posted by krinklyfig at 5:15 PM on January 9, 2012 [2 favorites]


krinklyfig: publicly funded campaigns

This.
It's simple and works.
posted by Hairy Lobster at 5:18 PM on January 9, 2012 [3 favorites]


As I'm sure you know, corporations are legal fictions created by statute for the public good by limiting liability of investors in a business to their investment.

That describes for-profit corporations. Citizens United is a non-profit established precisely for the purpose of political speech. It is a corporate entity too, as is Planned Parenthood, and MetaFilter. If they can be censored, this website could be censored. Our voices could be censored.

Should MetaFilter not be allowed to take out an ad against SOPA? Should they be prohibited from lobbying Congress on SOPA? Its a huge issue that affects the site. Shutting down its ability to do so is dumb.

The problem is money=speech.
posted by Ironmouth at 5:21 PM on January 9, 2012 [2 favorites]


When I worked for Citigroup, they would send around 'donate to our PAC!' emails, where you could have it taken right out of your paycheck.

They would also send around a 'here are people our PAC supports, and here's their campaign URLs and here's their campaign contribution URLs'. The implication being that the company PAC would do their donation and hey, we're making it easy for you as a public citizen to ALSO donate to the people they like.

These companies are pretty good at nudging and winking as to that. They don't say directly to donate, but they make a point of making it easier to donate to the ones they support.

(the 'hey, this is who our PAC is donating to' emails also had a lot more legalese about not letting it outside of the corporation than most of the policy emails...)
posted by mephron at 5:23 PM on January 9, 2012 [1 favorite]


krinklyfig: Exactly. You don't get egalitarianism by restricting speech, you get it by enhancing the voices that are going unheard. This is Lessig's point as well. That said, there are some reasons to worry that public financing will not properly correct inequalities, either.
posted by anotherpanacea at 5:25 PM on January 9, 2012 [1 favorite]


Anyone who complains about Citizens United needs to be able to explain how, under the Constitution, Congress can prohibit Citizens United to spend money to air a film about Hillary Clinton but can't prohibit the New York Times to spend money researching, writing, and distributing a story about Hillary Clinton.

Or Metafilter spending money serving up pages containing information about Hillary Clinton, for that matter. This isn't an easy issue, and just carping that corporations aren't people or money isn't speech isn't going to come to a sensible result.
posted by planet at 5:43 PM on January 9, 2012 [5 favorites]


The press is specifically provided for in the Constitution, whereas the Citizens United film was a specific piece of undisguised advocacy ("electioneering" is the word, I believe) not part of a general journalism practice.

I agree that the distinction bears examination, though; if FOX had run the film under its own umbrella of supposed journalism you'd have a pretty contentious case.
posted by George_Spiggott at 5:50 PM on January 9, 2012 [2 favorites]


there is no problem with limiting contributions to political campaigns to individuals

My limited understanding is that actual contributions are still limited to individuals. Things like superpacs can't actually contribute to campaigns -- instead, they can spend money to buy ads and such independently of any campaign.

What I really don't get is how the whole "unlimited donations" thing came about. I mean, OK, let's assume that Koch Industries really does have a right to make a donation just like me, but if I made a donation of more than, what, $5,000 or something like that, I would be in violation of the law, wouldn't I?

My understanding of CU is that your donations are still capped at $X this year, while BigCorp and Union have their contributions capped at $0. But all three of you are equally free to spend $500,000 buying ads favoring your preferred candidates.

The anti-electioneering-ads part of BCRA always seemed destined to go down in flames to me given Valeo.
posted by ROU_Xenophobe at 6:02 PM on January 9, 2012


The press is specifically provided for in the Constitution, whereas the Citizens United film was a specific piece of undisguised advocacy ("electioneering" is the word, I believe) not part of a general journalism practice.
Even if "press" in the first amendment means institutional journalism (and I find Volokh's arguments to the contrary overwhelmingly convincing), what tells you that even though money isn't speech, money is press? What tells you that even though corporations don't have free speech rights, they do have press rights?

The structure of the first amendment sure isn't going to tell you that one applies to corporations and the other doesn't, or that money is handled differently in one freedom than the other. The entire press freedom is just four words: "or of the press". How different than freedom of speech can it really be?
posted by planet at 6:03 PM on January 9, 2012 [1 favorite]


I am ambivalent about Citizens United, as even though I agree with most of the arguments made in favor, the dissent opinion in the Montana case is equally valid.

This suggests to me that the initial premises are flawed.

What should be clear is that privileges of corporations should only be through statute, and only at the state level, interstate commerce clause notwithstanding: the charter is issued by the state, not the federal government, and each state should define how it applies. It is extremely suspect that Montana should abide by the corporate charter in Delaware. What I believe the central concern is that the powers and privileges of the corporation should be clearly defined: we should not wake up tomorrow to find corps. have the right to bear arms.

As far as money=speech. Yeah, sorry, the legal nightmare of attempting to regulate as such would be worse than results we have now. Money is power, which makes some speech (and corruption) more powerful than others. Deal.

The problem as I see it is that it is currently too cheap to buy off the government (I am insulted less that corporations try to buy favor than the price being so low). Introduce 50 more legislators (hey, more democracy for everybody!) who are chosen yearly at random by each state to give a simple yes/no vote on any bill. If there is going to be corruption, no reason why the average Joe shouldn't get a piece of it.

And while we're at it, could we have guest speakers read each and every bill to congress before vote (I always pictured James Earl Jones reading The Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq at the capitol as the perfect backdrop for the clusterfuck to follow.)? It would make C-Span more entertaining and maybe make bills more concise.
posted by quintessencesluglord at 6:09 PM on January 9, 2012


Why do people insist this isn't straight up bribery? Why are people so shit-scared to use the word "corruption", and insist political donations are just made for the pure joy of it?

Jimbob, I contend that there is real estate in between the lands of "bribery" and "paying for political advertising". I think most people would agree.
posted by IAmBroom at 6:15 PM on January 9, 2012


Planned Parenthood can't make direct political contributions . They would lose their tax exempt status as a 501c3 org.. Look at Ironmouth's strawmen it burns so bright in the winter sky.
posted by humanfont at 6:25 PM on January 9, 2012 [6 favorites]


The problem is money=speech.

Seems you're repeating this on the assumption we'll take it as given.

Let me disabuse you of that illusion.

I don't think GE (or Planned Parenthood, for that matter) should be able to contribute money to any politician for any purpose. Its CEOs and employees should--and for that matter, if they wanted to offer employees the opportunity to take a percentage off their check and contribute it to the same places the CEO's sending it, I wouldn't have a problem with that. That's basically what corporate campaign donations are accomplishing now, but without the input of the employed.

I see no need to protect the free expression of corporations. Each individual who makes them up needs protected--and, hell, if GE gets the idea to do a cross-promotion with a political candidate, I'd argue that should be treated the same as a regular marketing campaign. We'd see a lot more shilling in political speeches that way, which, well, at least it'll be out in the open. But when a corporation is prevented from donating to a political cause, its members are not, so I see no violation of rights taking place.
posted by LogicalDash at 7:14 PM on January 9, 2012 [1 favorite]


anotherpanacea wrote: It costs money to speak loudly enough for 330 million people to hear you. Restricting spending on speech restricts speech.

The irony is that, like college tuition, the cost of speech keeps going up precisely because more and more money is available to buy it.
posted by wierdo at 7:22 PM on January 9, 2012 [2 favorites]


I'd amend that slightly: the irony is that speech keeps getting cheaper to broadcast, as witnessed by our own cheap talk right now. But when you're competing to get a message conveyed, you're not really buying speech, you're buying attention. And attention seems to be getting more expensive. The 1st Amendment doesn't guarantee eyeballs, pageviews, or re-tweets: it prevents censorship.

There's already some suggestion that the most important parts of the internet-era races were the organization, activism, and "ground game" of the candidates' campaign staff, none of which can be funded by corporations, rather than the money spent on ads. When a whole generation has grown up with Ad-Block, what good will a televised issue ad be?

Unless maybe those Gmail ads on the sidebar work subliminally....
posted by anotherpanacea at 7:54 PM on January 9, 2012


Ironmouth,

Suppose the Court declared tomorrow, "Whoops, we were wrong, money is not, in fact, speech." What do you see that as accomplishing that would not be accomplished by saying that associations of people (as distinct from the people who make up the associations) do not have a fundamental right to free speech? Why do you think that overturning the equivalency of money and speech is a better policy move than ending corporate personhood -- and thereby, protection of corporate speech?
posted by Jonathan Livengood at 8:00 PM on January 9, 2012


anotherpanacea wrote: I'd amend that slightly: the irony is that speech keeps getting cheaper to broadcast, as witnessed by our own cheap talk right now. But when you're competing to get a message conveyed, you're not really buying speech, you're buying attention. And attention seems to be getting more expensive. The 1st Amendment doesn't guarantee eyeballs, pageviews, or re-tweets: it prevents censorship.

That's reasonable. Mass distribution of speech is getting more expensive, although we now have a nice lottery to let us less fortunate people have a chance. The original tweet isn't worth much more than me writing here (which is fun and engaging, but not really world-changing). It's a massive number of re-tweets that makes it more like a TV ad.

Entries into that lottery are what have dropped in price.

All that said, the money spent on ads for candidates is also buying access, so it could be argued that access is the desired end. Since access can't be directly bought with money, it drives up the price of attention/political speech/whatever currency is paying for the access, which is far more powerful than almost any amount of air time.
posted by wierdo at 8:38 PM on January 9, 2012


Planned Parenthood can't make direct political contributions . They would lose their tax exempt status as a 501c3 org.. Look at Ironmouth's strawmen it burns so bright in the winter sky.

The ACLU has the same issue, which is why there is the ACLU and ACLU Foundation. When you make a donation, you need to choose which to support.

And 501(c)4s have some restrictions too, like they can't brodcast support for federal candidates 30 days before an election

Looked at that way, 501(c)s are actually now at a further disadvantage due to Citizens United.
posted by formless at 8:44 PM on January 9, 2012


When a whole generation has grown up with Ad-Block, what good will a televised issue ad be?

I believe you vastly overestimate the number of people who use are technically savvy enough to be aware of Ad-Block. My dozen-or-so nieces and nephews are almost entirely in the generation you refer to, and not one of them even gives their brand of web browser half a thought much less what extensions are available. They tend to spend their online time on Facebook (using whatever version of IE came with their computer) and their cell phones (also on FB), they often get cable/satellite tv when they move out on their own, and overall they are just as much a product of advertising as our generation - they repeat the jokey ad taglines and have their favorite commercials, etc. BTW, I still clean up their computers when they get infected. Oh, and most of them lean conservative, although I'm pretty sure some who are voting age are not bothering to vote at all, or possibly only for the major elections. My mom and step-dad were/are very politically aware, critical thinkers especially when it comes to politics and media, and pretty liberal (albeit still not the most tech savvy). Their kids' kids are far less critical of media in general, particularly when it comes to politics. In other words, despite my family's best efforts, we are contributing some low-information voters to the ranks - despite my own efforts none of them cares at all about Ad-Block or anything related to being tech/media/platform savvy.
posted by krinklyfig at 8:45 PM on January 9, 2012 [2 favorites]


First of all, here is an interesting talk on this subject by Thom Hartmann. He seems to have done a lot of research on this issue, although I don't necessarily agree with some of his analysis (in particular, I don't agree on his views on Marbury v. Madison). But the lecture is well worth the listen. I've wanted to read his book on the subject for some time when I get a chance.

Secondly, regarding the profit, non-profit issue: I think that is a distinction without a difference, and I should not have brought it up earlier as it kind of became a red herring. The biggest differences between for-profit corporations and not-for-profit corporations anyway are the purposes for which they are respectively formed and the way they are taxed. But nonetheless each form of corporation are provided for in statutes as a matter of public good and chiefly function as a form of limited liability for their investors or their creators, although with not-for profits the tax implications implicit in their formation are a key consideration. In any case, as humanfront pointed out, non-profits cannot make political contributions in the first place if they want to keep their tax status, which is one of the main reasons they are formed in the first place. Legislators did not form them in order to provide a way for wealthy individuals to funnel money into the political system; indeed, that should be against public policy.

Thirdly, I actually disagree with many here that money does not equal speech -- or much more precisely that the act of giving money to a political cause or candidate is not symbolic speech. I really don't feel like looking up and citing them, but there is a venerable line of cases that hold that certain symbolic acts, like flag burning for instance, are most definitely speech. I agree with the reasoning of these cases. However, I also think there is a compelling case to be made that the amount of money that each citizen can give to any one candidate and to candidates as a whole during a single election cycle should be limited so that people of means do not have a disproportionate impact upon the political process. I also think there is a good case to be made for the public financing of elections, but for the reasons cited above, I'd like to continue to allow people to give money to candidates.

And when a corporation spends money to affect an election, in reality it's the person or persons who control the conduct of the corporation who are doing so, in effect amplifying their own influence using entities that are not meant for that purpose and that they were only privileged to create in the first place by sufferance of the law in order to facilitate the conduct of business (or in the case of not-for-profits for other good but limited purposes which the respective legislators deemed worthy of limited liability protection and special tax treatment). That wealthy individuals are now using these entities to engender corruption or the appearance of corruption in our governance and to hide these activities is offensive and an affront to the Republic.

So while giving money to a political candidate or for a political cause may be free speech, the government has a compelling interest in limiting the amount of money that any individual can spend in an election in order to maintain the integrity of elections and the legislative process, in my opinion. And I don't think that any good comes out of allowing these legal fictions (in reality, once again, the people who control these legal fictions) to uses these statutory constructs to give money to political campaigns or to claim for themselves the rights of persons.

Finally, of course we can cherry pick what incidents of personhood to bestow to a corporation so that they can fulfill their basic function. As has been stated with a pedantic air, persons and corporations have never been treated identically in any case, even after they were given the status of people. There's no contradiction in stating that a corporation (or LLC Partnership or whatever) can sue or be sued, can own property, etc. but cannot make contributions to political campaigns, cannot spend money for the purpose of affecting an election, etc. They are creatures of statutes; they can be whatever we the people want them to be.

And since their justification is promotion of public policy, they should be subject to regulation and oversight by the sovereign, the People -- through their elected representatives. And they most definitely should not be used to promote the political agenda of their owners and distort the political process such that the government serves the interests of those owners rather than the public at large.

And of course we can curb the undue influence of these corporations and still protect freedom of the press. For instance, now that I'm at my computer rather than my Blackberry, I can pasted the text of Bernie Sanders' Saving American Democracy Amendment:

"SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

"SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

"SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

"SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures."

Section 2 does exactly that: it confirms that corporations are subject to regulation by the People and at the same time protects freedom of the press. It could not be more clear.

This is not perfect. I would add the following sentence to Section 3: "The Congress and the several States shall have concurrent power to enforce this section by appropriate legislation." I would also perhaps add language making it clear that corporate property is safe from unreasonable searches and seizures.

But I do think that corporate power in general and the corrupting influence of money are reigned in.
posted by JKevinKing at 9:04 PM on January 9, 2012 [3 favorites]


Reined in, not reigned. That's something kings do.

It's worth remembering that the biggest spenders under Citizens United so far have been unions, which are also corporations and thus legal persons within the meaning of that decision. By 'so far' I mean 'at the last election cycle'; during the GOP primaries the absolute value of Super PAC contributions will appear to rise disproportionately, but this rise will be offset during the general election season as left-leaning super PACs campaign for the Democratic party.
posted by anigbrowl at 9:08 PM on January 9, 2012


Reined in, not reigned. That's something kings do.

Yeah ... there are a couple other snafus in there as well. I need an editor!
posted by JKevinKing at 9:14 PM on January 9, 2012


It's worth remembering that the biggest spenders under Citizens United so far have been unions, which are also corporations and thus legal persons within the meaning of that decision. By 'so far' I mean 'at the last election cycle'; during the GOP primaries the absolute value of Super PAC contributions will appear to rise disproportionately, but this rise will be offset during the general election season as left-leaning super PACs campaign for the Democratic party.

Well, I stand by my principles, whether or not they affect groups I may or may not support. (Although I do in general support the unions, Planned Parenthood, and the ACLU.) I believe that on balance, money flowing into the political system as well as corporations having the same equal protection rights, etc. as you and me are a corrupting influence on the government and should be reasonably limited.
posted by JKevinKing at 9:19 PM on January 9, 2012 [1 favorite]


Planned Parenthood can't make direct political contributions . They would lose their tax exempt status as a 501c3 org.. Look at Ironmouth's strawmen it burns so bright in the winter sky.
Educate yourself before trying to pwn. Planned Parenthood has a 501(c)(4) and a PAC as well as the 501(c)(3)s.
posted by planet at 9:39 PM on January 9, 2012 [1 favorite]


SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
This is a joke. Corporations wouldn't be entitled to due process? The takings clause wouldn't apply to property owned by a corporation?

This is a stunt, not a proposal.
posted by planet at 9:43 PM on January 9, 2012


planet wrote: This is a joke. Corporations wouldn't be entitled to due process? The takings clause wouldn't apply to property owned by a corporation?

Unless we've got a bunch of ownerless and zombie corporations marauding across the countryside, I think the protections afforded the owners should suffice to prevent the government from unreasonably taking their property.
posted by wierdo at 10:37 PM on January 9, 2012 [1 favorite]


The issue, I think, with 'money =/= speech' as the basis for a fix is that you'll then just have corporations buying airtime for political commercials that they endorse which are, after all, a form of speech. One that just happens to involve the expenditure of money along the way.

What's needed is an amendment saying that congress has the right to restrict the 'personal' rights of corporations. Such as political spending caps. Or even just an amendment allowing congress to place spending caps... Keep it simple.
posted by kaibutsu at 10:50 PM on January 9, 2012


It's worth remembering that the biggest spenders under Citizens United so far have been unions, which are also corporations and thus legal persons within the meaning of that decision.

Cite?

If you're talking about Super-PACs, then that's wrong for both 2010 and 2012 to date.

If you're talking about 501(c)(4)'s, then there's no way of knowing. Which is exactly the problem.
posted by webhund at 10:54 PM on January 9, 2012 [2 favorites]




The issue, I think, with 'money =/= speech' as the basis for a fix is that you'll then just have corporations buying airtime for political commercials that they endorse which are, after all, a form of speech. One that just happens to involve the expenditure of money along the way.

It's perfectly reasonable to restrict and regulate speech during political campaigns. For example we could prohibit all campaign-oriented political advertising six months before a national election. We similarly restrict speech around polling locations on the day of an election.
posted by krinklyfig at 2:29 AM on January 10, 2012 [3 favorites]


I thought I had ideas in this issue, but reading the thread has left me feeling less convinced than before I started.

I'm a fan of pretty much all things Bernie Sanders, but I can't comprehend this clause:

"SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures."


Congress gets to authorize the establishment of committees to receive and spend contributions?! That seems to me to say, Congress gets to decide who is allowed to run a campaign. After all, taking donations and spending them IS campaigning. I don't doubt the Senator's motivation. The language of the amendment may not say things quite right.
posted by Goofyy at 4:06 AM on January 10, 2012


Planed Parenthood and the PAC are different corporations. They have to be extremely careful how they interact. The fact remains that they are much more restricted than other corporations in terms of how they can conduct political advocacy.

We will not solve this with regulations on speech or spending. People will find ways around it. The solution is to tax the rich so they don't have millions of extra dollars to buy elections with.
posted by humanfont at 4:21 AM on January 10, 2012 [1 favorite]


"Kennedy's Justification" might just be the worst conclusion ever: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
posted by Blake at 7:39 AM on January 10, 2012 [2 favorites]


anigbrowl: It's worth remembering that the biggest spenders under Citizens United so far have been unions, which are also corporations and thus legal persons within the meaning of that decision.

webhund: If you're talking about 501(c)(4)'s, then there's no way of knowing. Which is exactly the problem.

But there's a heck of a lot of circumstantial evidence: "spending by Super PACs and all outside spending strongly tilted towards conservatives, and that spending by undisclosed donors [i.e. to 501c's] actually was eight times higher for conservatives than liberals, with conservatives spending $119.6 million to liberals’ $15.7 million."
posted by EmilyClimbs at 8:35 AM on January 10, 2012 [1 favorite]


The press is specifically provided for in the Constitution, whereas the Citizens United film was a specific piece of undisguised advocacy ("electioneering" is the word, I believe) not part of a general journalism practice.

I think you don't mean that you think advocacy should be made illegal.
posted by Ironmouth at 9:41 AM on January 10, 2012


conservatives spending $119.6 million to liberals’ $15.7 million.

Given that $3.7 billion was spent on the 2010 midterms, this doesn't seem like a lot of money to me.
posted by anotherpanacea at 10:03 AM on January 10, 2012


If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.

But you can sue governments without there being any broad doctrine of government personhood that grants them the rights of citizens.

In any case, if the courts are unable to deal with any entity that isn't construed as a person being party to a lawsuit, that would seem to be a basic problem in law. Any entity that is capable of owning property should be capable of bearing debt.
posted by XMLicious at 10:55 AM on January 10, 2012


I think you don't mean that you think advocacy should be made illegal.

Correct. I also don't mean, for example, that film should be made illegal, or not wearing a disguise..
posted by George_Spiggott at 11:08 AM on January 10, 2012


I don't see the distinction between people and corporations.

I do.

Corporations are created funnel the money and clout of many people to the control of a very few at the top of the corporation.

In short, corporations are anti-democratic by nature. Their anti-democratic tendencies need to be regulated and limited, not encouraged, cultivated, and worshipped as some sort of ideal.

And I say that as someone involved in leading a couple of (very small) corporations. Yes, corporations are made of people, but the whole design of the corporation funnels the power of all the people in the corporation to the few decision makers at the very top. In fact, that is the very purpose of the corporation.

That is exactly what makes corporations so useful, but it also makes them intrinsically dangerous and anti-democratic unless strictly regulated and limited in how they can use that power.
posted by flug at 1:25 PM on January 10, 2012 [3 favorites]


And by the way, the reason a guy like Romney believes that "corporations are people" and all is AOK with them is that he is always one of the 0.01% in a large corporation who is in control of the money and power of the entire corporation.

If you're one of the 0.01%, corporations are just dandy, and the larger the better . . .
posted by flug at 1:28 PM on January 10, 2012 [1 favorite]


flug, it's also worth noting that the people corporations are made of are not always allowed to act like people while in the service of the corporation. If the CEO of a company makes decisions that favor moral clarity over profit, the investors could sue him for deriliction of duty.
posted by localroger at 3:02 PM on January 10, 2012 [1 favorite]


If the CEO of a company makes decisions that favor moral clarity over profit, the investors could sue him for deriliction of duty.

That is total bullshit there is no such requirement. That is a common misunderstanding, but it isn't true. Try to find a single case where this actually happened.
posted by humanfont at 3:53 PM on January 10, 2012 [3 favorites]


humanfont, the case that is cited in the movie The Corporation is Union Carbide after Bhopal, when the CEO very publicly vowed to "do whatever is necessary to make it right" and then was very powerfully forced to start screwing the victims.
posted by localroger at 7:01 PM on January 10, 2012 [2 favorites]


Warren Anderson the CEO of Union Carbide flew to India to investigate, upon arrival he was arrested for homicide and other crimes related to the disaster. He posted bail and fled India. Union Carbide the compamy later settled claims in civil court India. He remaIns a wanted man by Indian authorities who have called for his extradition. I don't see how this provides an example.
posted by humanfont at 9:21 PM on January 10, 2012


the investors could sue him for deriliction of duty.

This does not and, except in a really strained hypothetical case, cannot happen.

For whatever reason, I feel like this claim gets made every few months here on the blue; it's one of those things that cynical people just want to believe so badly, presumably because it gives a convenient explanation for corporate misbehavior (and one which avoids the uglier explanation, namely that some people who are in charge of large enterprises just don't give a shit, and are quite comfortable doing horrible things in search of profit without any external requirement to do so). But it doesn't hold water.

At risk of basically copying and pasting from earlier comments I've made on the same thing, here's a good article examining the issue. Spoiler: "it appears that much of corporate law has already rejected shareholder primacy arguments in favor of allowing managers greater freedom of action. [...] [T]he shareholder primacy argument has increasingly become a straw person among academics."

Except insofar as it might be used as an excuse for antisocial actions that the directors of a company want to engage in anyway, there's no valid reason why fear of a shareholder lawsuit ought to be a significant driver of corporate action. At least in the U.S., the courts have made it extremely difficult for shareholders to take action over decisions made by a company's directors (unless there is some sort of obvious malfeasance involved, e.g. stealing right from the till).

If the corporate-directors-hamstrung-by-greedy-investors thing was true, then we would expect to see all public companies behaving antisocially, all the time, whenever there was any profit at all in doing so. And that's just not the case: we concentrate on those instances where companies have done something obviously wrong, but tend to ignore the companies who don't; but the fact that there are any public companies at all who somehow avoid being taken apart by their investors for failing to open up a rendering plant for producing household products from orphans, or whatever the sociopathic behavior du jour is, strongly suggests that companies are not as vulnerable to this sort of attack as some would have us believe.
posted by Kadin2048 at 6:52 AM on January 11, 2012


CEO compensation at a public company is leveraged to the stock price. That is really all the incentive they need to put quarterly earnings ahead of everything. Why worry about the long term when you'll get a small fortune if you can just beat the street by a couple cents a share.
posted by humanfont at 10:42 AM on January 11, 2012


If we get rid of artificial personhood for corporations, we can't sue corporations for anything. Because they won't have standing to sue or be sued. They cannot be recognized by the court as a party.

But you can sue governments without there being any broad doctrine of government personhood that grants them the rights of citizens.


government is the sovereign. Its role is already defined in the courts and arose out of kingship. Corporations came later and were not recognized at law. Briefly, there are two types of courts, law and equity (the court of the king's chancellor). This is known as the Court of Chancery. Since corporations are not recognized at law, the courts of Chancery took over their regulation.

Later, in the US the courts of equity were merged with the courts of law, (except in one state). So the same court handles it all. But the law of corporations, where not statutory, is in equity.

But there is one state where the law/equity distinction remains. Delaware. That's because so many corporations are incorporated there that they kept the distinction.

As for suing the government, generally, you cannot sue the government because the sovereign is immune to suit by definition. This is called the doctrine of Sovereign Immunity. Only where the Constitution or Congress has actually allowed such suits are they allowed.
posted by Ironmouth at 11:19 AM on January 11, 2012


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