The Citizens United Shall Never Be Divided

September 24, 2010 3:40 AM

The latest attempt to mitigate the impact of the Citizens United decision has failed, with an attempt to pass transparency rules for corporations funding political advertising failing to reach cloture. Obama comments on this vote in his most recent weekly address. Citizens United v Federal Election Commission (2010) held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment.

You can read the original judgement in the case here. (I particularly recommend Stevens dissent, which seems to me to be very interesting reading).

Jurist Ronald Dworkin criticizes it strongly here.

The legal status of corporations has been much discussed recently. Should they be accorded the same rights as people? Commentators have observed that if corporations were people, they would be considered psychopaths.

This has come up several times on Metafilter: the original SCOTUS decision was reported here, a Rolling Stone article discusses how political operatives might take advantage of it here and as far back as here the idea of Corporate Personhood is raised. And probably elsewhere as well!

posted by lucien_reeve (44 comments total)

The essential issue is that western liberal democracies are ill equipped to handle unbridled corporatism - they have goals and motivations that are completely at odds with each other.

Many people conflate "corporatism" with "capitalism", most believing they are one and the same. They are not. It is possible to have a robust capitalism that answers to the social imperatives of democracy, however the corporate aspects of capitalism are entirely at odds with the social necessities of democracy. It is entirely possible - and desirable - to isolate corporatism through law and legislation, however the contemporary ideology of capitalism and free markets believes that the two (corporatism and capitalism) are indivisible. An attack on corporatism is an attack on capitalism.

The failure of democratic institutions to separate out corporatism from capitalism ensures that every instance of conflict between the two, corporations and social welfare, will end in the triumph of corporate interests above those of progressive liberal democracy. With each victory, power is transferred from the people to the corporate format.

Fixing this should be a simple matter. Through law, legislation, and charter corporations could be brought to heel and made to serve the interests of social welfare. It would be an extremely populist position that would have wide support across the west. However, as long as the myth that corporatism means capitalism persists, this transfer of power from the people to oligarchic corporate formats will continue unabated, as it has for several generations now.

It doesn't have to be this way. The fix is simple and laser sharp. If only we could shake off this slavish belief that corporations are capitalism, and capitalism is untouchable.
posted by Aetius Romulous at 4:30 AM on September 24, 2010 [54 favorites]

Corporate Personhood

Well if we're gonna treat corporations as people perhaps the Democrats can gain access to Congress through the Americans with Disability Act and because it would appear to me that these rulings effectively disable the party.
posted by three blind mice at 4:30 AM on September 24, 2010 [1 favorite]

This is why I cannot understand the tactical thinking of the modern anti-US terrorist. Left to their own devices, the US will quite happily destroy themselves (or at least sit back & allow it to happen).

The irony is that whilst Europe tries to move further away from the inequalities and lack of opportunity of the age of aristocracy by providing social support to all, the US is creating its own aristocracy of ultra-rich business clans whose only idea of social support is waiving the ever-retreating carrot of 'you can be like us if you work hard and agree with what we do'. Democracy becomes just another form of ultimately fruitless entertainment.

I'm torn. I love a lot about the US and have many good friends there but at the same time, as I'm not old enough to have witnessed the fall of empires last century it would be kinda fun to see it happen in my own lifetime. Kinda fun in a very twisted & very sad way...

Those of you who got out there and worked so hard in the run up to the last presidential election might have to roll up your sleeves and get out again...except that money & time is much tighter than before.

The US stands/stood, in part, as a great example of how many ordinary people can make something happen for them as opposed to an out of touch, hereditary ruling elite. It would be a shame to see it become an example of how ordinary people can give that up to a psychopathic, business ruling elite.
posted by i_cola at 4:47 AM on September 24, 2010 [2 favorites]

This is why I cannot understand the tactical thinking of the modern anti-US terrorist. Left to their own devices, the US will quite happily destroy themselves (or at least sit back & allow it to happen).

I imagine an awful lot of people are upset at our determination to drag them down to hell with us.
posted by Pope Guilty at 4:49 AM on September 24, 2010 [4 favorites]

Ask any mitochondria or chloroplast, corporations are, if not the entirety of at least an element of, the next phase of evolution.
posted by vapidave at 4:53 AM on September 24, 2010

Are we going to be bacteria in the guts of corporations, then?
posted by lucien_reeve at 5:01 AM on September 24, 2010 [2 favorites]

the whole corporate personhood "debate" is exhibit 2,136,724 in the case of the complete ineffectiveness of left politics in the U.S. It allows the debater to be:

A. outraged. Corporations not people!
B. principled. Democracy not corporatism!
C. consequence free. This is never gonna happen!

Is the idea that the only way you can have democracy in the U.S. is if there is a revolution in business/property jurisprudence? Well, good luck then with that.
posted by ennui.bz at 5:04 AM on September 24, 2010 [2 favorites]

I think the idea is that this is an interesting issue.

But, by all means, let's make this into a conversation about how the left is ineffectual. I'm sure that would be much more useful.
posted by lucien_reeve at 5:09 AM on September 24, 2010 [1 favorite]

Nonprofits are also corporations. Labor unions are also given these new freedoms by Citizens United.

Before this ruling took place, all a (rich) corporation or nonprofit had to do to advertise during an election was to set up a shell 527 organization (which never had any transparency or disclosure requirements). This system pretty much ensured that only the richest companies/groups with fancy legal departments would get away with influencing elections. According to the Wikipedia entry on 527s, during the 2004 and 2006 elections, left-leaning 527s spent twice as much as right-leaning ones.

Citizens United has done something to level the playing field. Corporate influence was just as rampant before, but now any group -- for-profit, nonprofit, union, whatever -- with the money to buy ad space can weigh in on candidates, without having to do the 527 loophole.
posted by overeducated_alligator at 5:11 AM on September 24, 2010 [2 favorites]

Minor thing: Dworkin's not a judge.
posted by el_lupino at 5:13 AM on September 24, 2010 [1 favorite]

Dworkin's colleague at NYU Law, Prof. Samuel Issacharoff, proposes an alternate solution to the problem of corporate money polluting politics.
posted by saladin at 5:18 AM on September 24, 2010

the next phase of evolution.

The next phase of the cultural evolution of social organization that is. This is definitely one way to analyze history post industrial revolution. Corporate entities become the dominant form of societal organization, while nation states are weakened. Snow Crash anyone???
posted by AElfwine Evenstar at 5:20 AM on September 24, 2010

According to the Wikipedia entry on 527s, during the 2004 and 2006 elections, left-leaning 527s spent twice as much as right-leaning ones.

There's something a bit funny about that Wikipedia page, though, isn't there?

I mean, it lists the Republican Governor's Association as a "democratic/liberal leaning group" - in 2006, the biggest fund raiser and spender. Also, the Club for Growth, described on their wikipedia page as "fiscally conservative".

Seems a bit dodgy to me.

Plus, you say that labour unions are granted new freedoms by Citizens United, the implication being that they will now be freed up to participate more.

But in the wikipedia list of the top 20 527s from 2006, the Service Employees International Union and "Change to Win" - an association of Labor unions - are already in positions 2 and 9 respectively.

So Unions were already using 527s heavily.

Otherwise, yes, the issue of corporate personhood is somewhat larger than the traditional division between right and left.
posted by lucien_reeve at 5:21 AM on September 24, 2010 [1 favorite]

Minor thing: Dworkin's not a judge.

Jurist: ju·rist 
–noun
a person versed in the law, as a judge, lawyer, or scholar.

See here, for example.
posted by lucien_reeve at 5:23 AM on September 24, 2010

Non-profits and unions, even the largest of them, are vastly outspent and overpowered by corporations and their trade groups. If anything, Citizens United tilted the field even more - under the old limits, unions and non-profits had at least a chance of keeping up.
posted by tommyD at 5:24 AM on September 24, 2010 [1 favorite]

Aetius Romulous' comment deserves to be sidebarred.
posted by flapjax at midnite at 5:25 AM on September 24, 2010 [2 favorites]

Okay, so corporations want to be people, well we should be able to punish them like people too. A corporation breaks the law then how do you send it to jail? Rather than a slap on the wrist fine why not take the entire profit for a period equivalent to a jail term.
posted by itsjustanalias at 5:37 AM on September 24, 2010 [1 favorite]

Dworkin's colleague at NYU Law, Prof. Samuel Issacharoff, proposes an alternate solution to the problem of corporate money polluting politics.

Thank you, that's interesting.

I have to admit, I raised an eyebrow at this:

"Corporations tend not to speak with one voice, and they are not in the habit of pooling their activities with business rivals."

Actually, corporations work together to strengthen their position all the time. See this WSJ article, for example.

And also the fairly sweeping point he makes, sort of out of nowhere, at the end, struck me as a bit under supported:

"Maybe the problem is corruption, not in the sense of the influence of money on ideas, but in the old-fashioned sense of the misuse of government power. One of the reasons that corporations did not demand more rights to contribute to campaigns is the fact that they often do not want to contribute at all. Rather, they are often shaken down by politicians, who demand money in order to guarantee access and preferential treatment. "

So, politicians are the bad guys picking on the poor corporations? Obviously nobody wants corruption, but that seems a bit loaded to me.

Having said that, he concludes by recommending something very similar to the act that just passed - in the first link, the purpose of the bill it links to was partly to prevent government contractors from spending on Federal elections, which is what Issacharoff seems to be calling for.
posted by lucien_reeve at 5:38 AM on September 24, 2010

This is why I cannot understand the tactical thinking of the modern anti-US terrorist. Left to their own devices, the US will quite happily destroy themselves (or at least sit back & allow it to happen).

I think the tactical thinking goes like this...
1. Perpetrate outrageous attack on US to kick-start US self-destruction.
2. Sit back and watch US eat itself in orgy of paranoia and recrimination.
3. Profit!
posted by Thorzdad at 5:42 AM on September 24, 2010

So Margaret Atwood really has this speculative fiction down pat. But then again so did the PC game Syndicate.

Are there really groups arguing in favor of giving corporations the same rights as people? Does that mean they would have the same responsibilities and obligations? What happens if a jury finds a product led to 1/10/100/... deaths?
posted by MrMulan at 5:48 AM on September 24, 2010

I am flummoxed as to how the whole concept of corporate "personhood" has gotten so out of control.

Corporate personhood, until recently, was understood as a legal fiction; a semantical construction that made the description and application of laws regarding corporations easier to comprehend. It was absolutely, positively, never, ever meant that corporations are persons in the constitutional sense.
posted by Benny Andajetz at 6:07 AM on September 24, 2010 [2 favorites]

All the money is used for TV commercials. Wouldn't it be nice if political commercials weren't allowed on TV?

And get rid of those drug ads. And lawyers ads.
posted by dglynn at 6:13 AM on September 24, 2010 [1 favorite]

"The irony is that whilst Europe tries to move further away from the inequalities and lack of opportunity of the age of aristocracy by providing social support to all, [...]"

...as long as they're the right ethnic group, right?

Inequality isn't just a US problem, and pretending like it is does a great disservice to the oppressed people in Europe.

Also, it's not particularly charming to wish suffering on other people because it would be fun to watch.
posted by the young rope-rider at 6:15 AM on September 24, 2010 [1 favorite]

All the money is used for TV commercials. Wouldn't it be nice if political commercials weren't allowed on TV?

You could write equal access and election day electioneering regulations into the FCC licensing regimes for radio and TV i.e. some mechanism for giving candidates equal access to the public airwaves and a ban on mass media buys x number of days before the vote, analogous to the ban on political signage on the steps of polling places.

But then you would be taking money directly out of the pockets of the big TV/radio/newpapers owners.

Corporations (and property law) aren't the problem, it's the very rich people who own and control them who are the problem.
posted by ennui.bz at 6:24 AM on September 24, 2010

Many people conflate "corporatism" with "capitalism"

Many people also conflate "capitalism" with "democracy". But yeah corporatism, like militarism, is diametrically opposed to the philosophical underpinnings of democracy; in both theory and implementation.
posted by AElfwine Evenstar at 6:38 AM on September 24, 2010

One problem I have with the concept of corporate personhood is nationality/jurisdiction. What is the citizenship of a multinational corporation like British Petroleum? Unlike normal persons a corporation has ambiguous national loyalties at best.
posted by Civil_Disobedient at 6:40 AM on September 24, 2010

The Citizens United ruling protects the free speech rights of the ACLU, the NAACP, Planned Parenthood, and The Sierra Club in exactly the same way it protects the rights of Exxon.
posted by pjdoland at 6:54 AM on September 24, 2010 [1 favorite]

The Citizens United ruling protects the free speech rights of the ACLU, the NAACP, Planned Parenthood, and The Sierra Club in exactly the same way it protects the rights of Exxon.

Wonderful.

It's still wrong, because: a) it equates corporations with people/citizens who actually have constitutional rights, and b) it validates the insane idea that more $$ = more free speech.

Constitutionally protected free speech rights are to protect the little guy. One man/one vote/one opinion, and all that...
posted by Benny Andajetz at 7:09 AM on September 24, 2010

The Citizens United ruling protects the free speech rights of the ACLU, the NAACP, Planned Parenthood, and The Sierra Club in exactly the same way it protects the rights of Exxon.

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
posted by It's Never Lurgi at 7:23 AM on September 24, 2010 [9 favorites]

pjdoland: I keep thinking of that Anatole France line. "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Freedom of speech is now majestically equal, every citizen is free to spend as much influencing the political process as the corporation with $13 billion cash on hand.
posted by Grimgrin at 7:25 AM on September 24, 2010 [1 favorite]

...

Why do I never preview?
posted by Grimgrin at 7:25 AM on September 24, 2010

itsjustanalias : Okay, so corporations want to be people, well we should be able to punish them like people too. A corporation breaks the law then how do you send it to jail? Rather than a slap on the wrist fine why not take the entire profit for a period equivalent to a jail term.

Exactly. There needs to be some mechanism in place to actually punish corporations; we've seen it time and again that a simple fine is viewed as nothing more than an operating expense, and they'll keep breaking the law as long as the profit plus fine is greater than not breaking the law at all. It's quite frankly absurd that we've even reached this place, but not surprising since the "people" with the money to most influence the direction of policies are the damn corporations themselves.

Figure out a way to stop corporations from financing politics and punish them for breaking the law, and everything will change.

Which is exactly why this will never, ever happen.
posted by quin at 7:40 AM on September 24, 2010

Unlike normal persons a corporation has ambiguous national loyalties at best.

A chartered, limited-liability corporation has no national loyalties at all. It's only purpose is to maximize return on investment for it's shareholders.
posted by steambadger at 7:41 AM on September 24, 2010

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Yes, and effective freedom of speech has always been limited to those with the resources to disseminate and broadcast. Should we ban newspapers from endorsing candidates, because newspapers are corporations, and only rich plutocrats own them?
posted by overeducated_alligator at 8:21 AM on September 24, 2010

Corporations: too big to fail, too hard to jail
posted by Artful Codger at 8:28 AM on September 24, 2010

What I don't understand about the Democratic party at the national level is why they aren't choking the airwaves with an all-out assault on the obstructionist tactics of their Republican counterparts. I distinctly recall the whole Republican "Up or down vote" hue and cry from the previous administration. Not only is the precedent there for the Democrats to follow, they have the extra added benefit of being able to call the Republican party on its hypocrisy.

Yet I hear literally nothing like this. It's not even just this issue. Every freaking policy initiative that is raised in the Senate is immediately subject to cloture challenge. Is the media burying the Dems that heavily or are they just rolling over or is there some tactical explanation I'm not coming up with. If I were coordinating the Dem national strategy this mid-term election this would be my central message: We're trying to help you but the whiny Republican minority can't accept they lost the last election and, instead, are using a tool meant for extraordinary times for the most selfish reasons.
posted by Fezboy! at 8:55 AM on September 24, 2010 [1 favorite]

"Which is exactly why this will never, ever happen."

This kind of negativity is understandable but it's really not accurate. You have no way of knowing this. Things change, sometimes very rapidly.

Two years ago I would have told you that credit card reform would never happen. And it has. We have brilliant new protections against companies that were running roughshod over consumers, using state self-governance to hide out in North (or South?) Dakota and screw everyone to the maximum of their ability, and the federal government was turning a blind eye. Not any more. Things change.
posted by the young rope-rider at 9:01 AM on September 24, 2010

To all those on the "if we accept corporations as people, can we punish them like people, too?" wavelength, I submit this article, perhaps even more relevant today than it was 12 years ago.

November, 1998
The Death Penalty for Corporations Comes of Age

We know what the death penalty for individuals means: Commit an egregious crime, die at the hands of the state. What does it mean to talk about the ''death penalty'' for corporations? Simply this: Commit an egregious wrong, and have your charter revoked. In other words, lose the state's permission to exist. It's an intriguing concept, because most of us never think about corporations needing anyone's permission to exist. But they do...

'We're letting the people of California in on a well-kept secret,'' said Benson. ''The people mistakenly assume that we have to try to control these giant corporate repeat offenders one toxic spill at a time, one layoff at a time, one human rights violation at a time. But the law has always allowed the attorney general to go to court to simply dissolve a corporation for wrongdoing and sell its assets to others who will operate in the public interest.''

In California, this power of charter revocation has apparently been invoked only once this century -- in 1976, when a conservative Republican AG asked a court to dissolve a private water company for allegedly delivering impure water to its customers. In New York, it was invoked more recently, when the AG sought to revoke the charters of two corporations that put out allegedly deceptive ''scientific'' research for the tobacco industry...

posted by tybeet at 9:40 AM on September 24, 2010

overeducated_alligator: No, but you can set ownership limits so that there's a diversity of opinion and one rich person can't crowd out the market, you can enforce a requirement to provide equal access to candidates in cases where there's a natural media monopoly so that everyone has a chance to present their views and you can enforce libel laws and standards of conduct so that they can't just make up whatever they want to smear whoever they like. I'm pretty sure the US used to do all of these things, without any great conflict with the first amendment.
posted by Grimgrin at 9:50 AM on September 24, 2010

What I don't understand about the Democratic party at the national level is why they aren't choking the airwaves with an all-out assault on the obstructionist tactics of their Republican counterparts.

Sad to say, I think that part of it is that the Dems like the obstructionist tactics when they are in the minority and don't want to get too snippy about the GOP doing what they themselves would do in the same situation.

Personally, I'd like to get rid of much of the procedural nonsense. You debate and you vote. The majority wins (yes, I'm going to stick to this position even when the GOP is back in charge. I'm consistent like that).
posted by It's Never Lurgi at 10:04 AM on September 24, 2010

What I don't understand about the Democratic party at the national level is why they aren't choking the airwaves with an all-out assault on the obstructionist tactics of their Republican counterparts.

The Democrats don't have a strictly controlled house organ like the Republicans do. Fox News leads with the latest Republican meme and pretty soon all the other news media outlets are picking up on it. Where do the Dems go? Sure MSNBC has some left-leaning opinion people, but no where near the message discipline that Fox News has developed.
posted by Mental Wimp at 11:14 AM on September 24, 2010

The Democrats don't have a strictly controlled house organ like the Republicans do.

I don't buy it. I mean, I buy that Fox News is the Republican mouthpiece and that the Democrats do not have a corresponding platform. What I don't accept is that this precludes the Democratic party from getting this message out. I think that if every Democratic candidate for national office made this a central part of their standard stump speech, if every Democrat who appeared on the Sunday morning blab circuit was belligerent about this point, if the President were to call a national press conference to belabor this, if the Gibbs were to work it in to his daily press message, it would get picked up. Not only that, but it would be a simple issue to demonstrate to the public and would do a lot to counter the do-nothing perception that hangs around this Congress like unchecked body odor.

The media I consume to is pretty solidly sympathetic to such a claim yet I don't hear it, even there. If I were a candidate I'd have a list of all the goodies that didn't come about because 41 petulant Republican senators said, outright, they would not vote for cloture and I would use every opportunity to iterate over that list and say:

1. Public Option for health insurance?! Sounds pretty good, right? Didn't happen because the Republicans wouldn't let us vote on it.
2. Extending Bush tax cuts for the middle class?! Sounds pretty good, right? Didn't happen because the Republicans wouldn't let us vote on it.
3. Finding out exactly who is dropping millions of dollars to annoy you with negative advertising about me?! Sounds pretty good, doesn't it? Didn't happen because the Republicans wouldn't let us vote on it.
4. ... etc ...
5. PROFIT!!!!!This item auto-inserted by metafilter.list.display()

posted by Fezboy! at 11:51 AM on September 24, 2010 [1 favorite]

"Maybe the problem is corruption, not in the sense of the influence of money on ideas, but in the old-fashioned sense of the misuse of government power. One of the reasons that corporations did not demand more rights to contribute to campaigns is the fact that they often do not want to contribute at all. Rather, they are often shaken down by politicians, who demand money in order to guarantee access and preferential treatment. "

So, politicians are the bad guys picking on the poor corporations? Obviously nobody wants corruption, but that seems a bit loaded to me.

I don't think it's less "bad guys picking on the poor corporations" and more "we're irritated that we have to play this game, too". Corporations would prefer not to spend money on corporate connected PACs, [reported] donations to politicians favorite charities, etc, but the invitations come rolling in-and each company doesn't want to be the ONE who didn't give. Most would be thrilled if ALL corporate giving of any kind in every way was illegal-no loopholes.
Further, all the coverage, scuttlebutt, and trade association meetings I've paid attention to say that corporations aren't jumping to exercise their new right to independent expenditures. And direct contributions by corporations are still forbidden.
Further, while I think Citizens United was a colossally bad ruling, the DISCLOSE Act is a pretty crappy way to solve it: mostly, it just repeats stuff that's already the law [FECA, HLOGA, what's left of BCRA]. And adds another layer of fake transparency that costs a lot of money to administrate.
posted by atomicstone at 2:35 PM on September 25, 2010

Most would be thrilled if ALL corporate giving of any kind in every way was illegal-no loopholes.

One of the things I remember about The Corporation (the documentary linked to in my FPP) is that they were at pains to stress that many CEOs and stockholders were genuinely decent people. They didn't like that corporations encouraged harm.

The interesting thing is that, as individuals, there was very little they could do to change anything.

This is not to say that there is no such thing as negligent or even wicked management. But it does raise the interesting possibility that corporations in some ways enslave those who nominally control them.
posted by lucien_reeve at 6:53 AM on September 27, 2010