No Fear of Citizens

Yesterday, the Supreme Court struck down its own precedent in order to overturn campaign finance laws prohibiting corporations and unions from making “independent expenditures” relating to political campaigns within the weeks leading up to an election.  The opinion is certainly significant.  For those of us of a more libertarian mindset, it is a huge blow for free speech.  For those of a liberal mindset, it is a huge blow for corporate influence over our electoral process. 

Needless to say, I find the majority opinion written by Justice Kennedy persuasive.  Surprisingly to me, I found Justice Stevens’ dissent unusually weak and full of obvious holes, at least outside of his arguments for stare decisis.  There are a couple of key issues in the case that are particularly worth discussing and that will also, hopefully, alleviate the fears that somehow this decision will mean more corporate dominance of our political process. 

At the outset, let us be very clear – the existence of a free speech issue here is very clear.  The laws prohibited virtually any kind of advocacy for a candidate by a corporation or union in the days and weeks leading up to an election.  Corporations and unions are nothing if they are not associations of actual, real persons.  Moreover, included in the concept of a “corporation” for these purposes are non-profit corporations that expressly exist as political advocacy groups.  However, certain corporations are expressly excluded from the law, to wit: media corporations. 

The majority argues, correctly in my view, that the distinction between media corporations and other corporations is arbitrary, and that indeed, this distinction proves that corporations in general cannot have meaningfully diminished First Amendment rights.  Professor Volokh beautifully and succinctly explains this argument here.  So, either corporations have something approaching full First Amendment rights, or the government has the authority to severely restrict the First Amendment rights of media corporations.

This brings me to the first example of why Citizens United decreases, rather than increases, the relative influence of large corporations over our elections.  This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2.  Specifically, the result of the decision is that the longstanding monopoly of media corporations on the ability to widely disseminate editorial opinions on elections is at an end.  Except for the fact that we may find ourselves annoyed by the even-higher presence of campaign ads on our TV come election season, this is an altogether good thing for democracy. 

The second, and to my mind more important, result of this decision will be to make it easier for smaller businesses and non-profits to have a voice in the system.   In his dissent, Justice Stevens goes to great lengths to explain how the ban on pre-election political ads by corporations isn’t really a ban because corporations and unions can just act via a Political Action Committee (PAC).  He acknowledges that acting through a PAC is a burden on corporate speech, but claims that it is a burden that can easily borne by a sophisticated modern corporation (whether for-profit or non-profit).  Ok, fair enough.  The trouble is that he assumes that all corporations are sufficiently sophisticated and large to be able to set up a PAC, with all of the attendant regulatory and reporting requirements that entails.  Not so.  Indeed, as the majority points out, there are millions of corporations in the United States, but less than 2000 corporate PACs.  It doesn’t take a rocket scientist to figure out the types of corporations represented by those PACs, nor does it take a genius to figure out the types of corporations that are not represented by those PACs. 

In short, the existing system’s response to free speech concerns (PACs) acts only to ensure that large corporations are already able to have near-unfettered participation in the electoral process, as long as they first overcome some regulatory hurdles that are relatively minor for them but are significant for smaller, less sophisticated enterprises.  Smaller corporations are effectively shut out of the system, thereby reinforcing the oligopoly of influence over elections and influence markets enjoyed by their larger, more sophisticated brethren.  This changes that.  Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place.  In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).

My expectation is that although this decision will certainly increase the voice of “corporations” writ large in our elections, it will do so by causing an increase in the number of corporate voices (again, remembering that this includes non-profit advocacy corporations) involved in the process beyond the usual suspects, and thus decreasing the relative voice of any one corporation or group of corporations.

ADDENDUM: Cf., Matt Welch:

When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the “voices of everyday Americans” that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or “Wall Street banks, health insurance companies and the other powerful interests,” in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now).

ADDENDUM II: Ilya Somin goes into a good amount of depth to explain why the inequality argument for prohibiting corporate speech would simply exacerbate the relative effects of other existing, and arguably more severe, forms of inequality.  In a nutshell, eliminating corporate speech magnifies the speech of famous athletes.  Somin also addresses the argument that “corporations are not people” here.

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192 thoughts on “No Fear of Citizens

  1. Meh good riddance. Clever young campaigner specialists awash in cash with the wild support of political groups will always be able to invent PAC’s or WAC’s or “insert acronym here”‘s faster than a modestly paid career bureaucrat at the FCC would ever be able or inclined to invent rules to regulate them. Let the shitstorm of dishonest campaign adds and malefic bullshit happen. It happens anyhow. At least this can serve as an indirect bailout of old media models during election years.


  2. Well didn’t the conservatives on the court like Roberts pretty conclusively come down on the side of free speech in the Bong Hits 4 Jesus case, so i guess this ruling makes complete sense. Guys likes Roberts don’t favor corporate interests over the others at all, no siree bob.


    • Who said that a defense of this decision was a defense of conservative jurisprudence more generally? Justice Kennedy’s arguments in this case strike me as pretty strong. Justice Stevens’ arguments, outside of the stare decisis issue, strike me as making a potent case for overturning reform rather than maintaining it, as he thinks. If you’re arguing that large, sophisticated corporations are already able to circumvent the law with relative ease (as Stevens does), then what justifies keeping prohibitions that ensure that small, unsophisticated corporations (more likely to be non-profits to boot) are unable to weigh in? Again – millions of corporations in the US, but less than 2000 corporate PACs.


        • I’ll actually be interested to see how the Tea Party crowd thinks about this. I certainly heard plenty about corporate power and to much influence of big money in politics. Not that you can’t be for this ruling and against big money, but I’m guessing the TP’s as group will be fine with a ruling that likely puts more corrupting money into politics.

          FWIW I’m not actually sure where I stand on this, I’m still reading varying opinions.


          • Maybe if obama hadn’t commented they would have been upset(we can’t know), but I think that anything the president comes out for the tea party group will quickly rally against.

            Simply because I don’t think they like the man.


          • I’m quite certain the Tea Partiers are in favor of this decision. From a purist First Amendment standpoint, it’s pretty unassailable – the dissent basically concedes that the regs placed a burden on free speech but argued that it was justified. Beyond that, for the reasons explained above, the idea that this will result in some new wave of corporatism simply lacks much merit. It is impossible to eliminate the influence of corporations and unions on the political process as long as corporations and unions have an interest in the political process (ie, as long as government is powerful enough to affect them). The question then becomes – how do you mitigate the influence of corporations and unions on the political process? As with factions more generally, the answer is simply: ensure that so many of them are involved in the political process that no one of them can ever obtain too much power for itself.


            • Mark, I gotta call BS on this entirely:

              ensure that so many of them are involved in the political process that no one of them can ever obtain too much power for itself

              You’re kidding, right? Who’s going to have more money to spend – Goldman Sachs, say, or the Sierra Club? This decision may result in more coroporations getting involved in the political process, but the involvement will be relative to the amount of money they have to spend – in other words, the greater the resources, the “freer” the speech.

              What this decision does is buttress the unfair advantage enjoyed by those with the greatest resources at their disposal.


              • This is true, and I even agree with Freddie, just not that libertarians and conservatives are supporting the power of large, wealthy corporations (at least not the ones who truly believe in limited goverment). The fact is that if government was limited, there would be no favors and protections for sale.


                • I don’t see how a government that limited would be worth having at all, honestly. Any government limited enough to be forced into being that even-handed and egalitarian seems to me like it would be too limited to effectively enforce the kind of basic criminal laws (against theft, murder, and other violations of others’ rights) that presumably you – as a non-anarchist – still support.

                  That, and I find that whatever you genuinely believe, libertarian rhetoric tends to effectively be a tool of those who want to slant government in favor of moneyed interests, because that is the practical effect of most badly-designed half-measures aimed at reducing government power (which are of course the only kind possible, since absent violent overthrow – or a vast expansion of direct democracy that likely would not have this effect anyway – it’s up to the government to limit itself.) While more sympathetic I totally understand where Freddie gets that idea.

                  And I’d like to apologize again for some of my intemperate comments and thank you for your respectful replies. (And also for acknowledging that you think nearly the entire 20th century is blatantly against how you feel government should operate.


                  • Joseph, I’m not sure what you mean — a government limited to policing, courts and national defense would be better in all those areas, because it would be focused, sticking to its knitting and more effective than a bloated bureacracy torn in a thousand different directions. But, really, in this instance, I’m talking about government limited in the sense it can’t favor one corporation or industry over another through legislation. On a fair playing field, especially in this technological age, small players are better suited for the game, as big corporations get lazy, slow and too conservative. Investors would be on the lookout to fund upstarts with good ideas and high spirits to succeed. You would see the best rise to the top, and you would see tremendous growth in small business hiring.


                    • I mean that a) attempts to move from a bloated bureaucracy to ” a government limited to policing, courts and national defense” would inevitably involve favoring some corporate interests over other because they would interfere with the process before it could reach that point, and b) policing and courts have a huge effect on corporate behavior and therefore any government with sufficient police power would inherently end up with a not-totally-even playing field.

                      You see the former clearly in so-called “privatization”, where governments contract out their functions to corporations in the name of reducing their own power, since this doesn’t actually reduce their power much, just dodges responsibility and gives away tax revenue to people with connections. Deregulation that simply ends up with less than a handful of companies controlling entire markets is equally common. I’m saying there’s a “can’t get there from here” problem even accepting your premises.

                      And I’m sorry, Mike, but I suspect in that landscape investors would act just as they always do, and that the demands of the corporate structure and profit-seeking inherently lead to a focus on growth and centralization. I’m sure you believe competition would keep this in check, but I don’t, and since this is so far from any economy that has ever really existed I’m not sure it’s possible to quantify who’s right.


  3. Interesting thought…with the ability to cut out PAC middlemen, doesn’t this – at least relatively – reduce the importance of lobbyists in the cash-for-influence system? I mean now that corporations can basically spend whatever they want on issue and candidate ads, they don’t have to rely on hiring “retired” Hill staffers and the like as much?

    As for the addendum, I couldn’t agree more. I actually really like Chuck Schumer and the President, but hearing the two biggest recipients of cash outlays from Wall Street cluck about the influence of corporate money just is a bridge too far.


  4. This is a complicated ruling. Whatever else is true, this is true: that moneyed interests have vastly more power than those without financial resources; and that libertarians will work tireless to improve that advantage. What I yearn for is a libertarianism that admits the disproportionate power of the wealthy over the poor, and expresses genuine remorse over that fact, while continuing to think that on balance the affront to rights (corporate rights, of course) outweighs that unfortunate situation. Instead, I see only unapologetic support for whatever increases the advantage of those already advantaged.

    This is what my conservative and libertarian friends ask me to believe: that literally every time there is a dispute between the privileged and moneyed on the one side, and the powerless and poor on the other, they side with the former at the expense of the latter, and yet this is merely coincidence. Merely coincidence that an entire spectrum of political thought has bent itself again and again to support the privileged at the expense of the oppressed. Mere coincidence.

    But I can’t challenge that, because as Dave from the League has made clear, there are simply some opinions you won’t countenance, some you don’t even find fit to answer. And my saying that you, Mark, are someone who works tirelessly for the promotion of those who don’t need your help to be privileged, is one of those forbidden opinions. Somehow, even with the evidence of your entire corpus of opinion on this blog, that is just an unthinkable thought, too impolite to answer. But like said– mere coincidence.


    • Freddie, I edited two words from the final paragraph of your comment for reasons that I think should be evident to you and that did not in any way alter the overall content of your comment. If you have any concerns, please feel free to contact me via email to discuss.


    • “Instead, I see only unapologetic support for whatever increases the advantage of those already advantaged.”

      I’ll try to explain this without too much moral judgment of people who might disagree.

      I approach the question this way: One either believes that the government should have the power to suppress speech it disagrees with or that it should not.

      That’s the question I’m dealing with.

      It’s not a question of “well, what if there’s this really weird situation where this corporation has disproportionate voice in the marketplace because of its money and the people don’t have a voice” because I remember when Bush was in office and wonder at, say, whether the government should have had the power to shut down 60 Minutes for running that story about the National Guard documents or ban Fahrenheit 9/11 from being shown because it violates election laws or what have you.

      It’s not because I believe that there is no injustice… it’s that I believe that there the state is far, far more capable of doling out injustice. Sure, the first day we say “hurray! we’ve silenced only bad people!” and the next thing you know, someone else is in power and explaining that CNN is a corporation and, as a fictional entity, does not have “Freedom of the Press” (and, by the way, thanks progressives for pointing out that corporations shouldn’t have rights!)… and if you have any questions about whether these corporations, the ones we agree with, have technically broken any laws… well, you have to understand that there are only so many hours in the day and I’m not sure it’s a good use of taxpayer dollars to prosecute de minimus cases.

      If we must err, and err we must, I’d rather deal with the errors that come from the government not having the power to shut up the opposition.


        • Well for one, we can start by not pretending the constitution is a list of suggestions only to be swept aside when the moral imperative of “the greater good of ‘Die Leute'” demands.

          Well there’s the nuclear option – a constitutional amendment limiting the first amendment protections of corporations.

          Then there are alternative options. Some people point to public financing, matching funds, strengthening reporting requirements. In hindsight, putting up regulatory roadblocks is quite unimaginative. I wonder what SCOTUS would say about taxes on media buys, I imagine if they’re content neutral they would past muster, after all access to the public airwaves for free is not a right.

          Then of course there’s the possibility of answering no to your question, greg. I mean corporations are kind of like captain planet, right? With our powers combined? So the question remains to what level are we uncomfortable with people banding together to promote interests? It’s a tactic that we say is good when it forms Habitat for Humanity but bad when it forms Halliburton? Unfortunately, the only way to really distinguish between the two is based on purpose and content, but discriminating speech between who the speaker is and what they’re saying, is something that long ago we decided was antithetical to the idea of a free and open society.

          What say you, greg?


          • I’m both skeptical of free speech restraints and opposed to the power of the powerful to swamp those with little money.

            I think a solution would be to give free tv/radio time to politicians. If a party or pol has some relatively smallish percentage of support they would get free 30 minute blocks of time to say what they want. That would be more speech, and it wouldn’t be based on who has the most money.


            • Who gets to decide the time and station that the free time is given? Are we talking network TV during prime time or C-SPAN at 2 AM? I’m not necessarily opposed to doing something like this, just pointing out that you’ve still got a huge problem of the powerful putting their thumb on the scale.

              Ah, fuck it – here’s a proposal for you. Do everything like American Idol. Have a series of preliminary debates so that every candidate capable of garnering X petition signatures gets an opportunity to debate. At the end of each debate, we telephone vote for a winner or two or three, however many is appropriate (one vote per cell phone, please!). The top X performers make it to the final round of debates, with one lizard getting dumped after each debate until we have a winner. Do the whole thing over the period of a week so there’s minimal time for outsiders to weigh in.


              • One could do a blind lottery candidates go in and are chosen at random. However, I’m sure you’d get all sorts of complaints that “my tax dollars are subsidizing some racist candidate in prime time!” Hell, I’d make that complaint, but that’s why I don’t support public financing. I don’t want my tax dollars going to racist candidates, only the ones I support.


            • Well, a couple of things to tease out the idea. With cable and satellite TV, and analog and satellite radio are you talking about blocks of time every station must carry? If so how are you skirting around the property/livelihood infringement?

              At this point, wouldn’t a C-Span-4 be a good alternative, subsidized by the government and available airtime for candidates based on a lottery or equal time blocs? Of course with hundreds of tuning options, that’s no guarantee that people will even in tune in.

              I’m not opposed to your idea, I’d just like to understand more of how it works.

              Fundamentally, the approach here is that money shouldn’t be a gatekeeper to political involvement and it shouldn’t overwhelm the poor. However, a lot of funding control schemes end up shifting the currency from money to people, whereby popularity becomes the gatekeeper, organizers become the new bundlers and numerical minorities – which often include the disadvantaged – can be overwhelmed.

              At a fundamental level, I’m enormously skeptical of any of these approaches because they’re like the Drug War, supply-side focused, without addressing the demand. With real goods that just creates and supports a black market, in politics it just means that the well-connected, well-funded, and quick to adapt are inconvenienced but those who aren’t are stymied, in some ways that actually does a favor for well-connected, well-funded interests that use government regulatory barriers as a cost-effective way to create a less competitive arena.

              It strikes me as more likely – though by no means certain – that a more successful approach would combine demand side policies with deregulation. Competition will re-balance the playing field and reducing the demands on political influence will reduce the absurdly high payoffs associated with having it.

              Whether it’s corporate giving, premarital sex, illicit drug use, or war, you can’t successfully ban things that people have a strong desire to use for personal benefit.


              • Well tv/radio stations are using the public airwaves, so don’t see a problem with making their license contingent on allowing so and so to speak.

                I also think a CSPAN free for all channel might work. Yes some people would complain. Some people will always complain about something.

                How do people get time? It could be based on number of people who register to vote for a party or even a simple kind of petition (phone or internet based even).

                I have to admit, of all the great ideas that people throw out, that i just don’t see how it works in reality is : competition. We’re Americans, we love competition, many of us will watch competition based cultural events on Sunday. The problem with competition is that the powerful can already game the system or overwhelm everybody else. Just saying competition will solve it seems to skirt that main issue.


                • You wanna explain how television is over the public airwaves? Telecommunications is subject to interstate commerce, but the public doesn’t own the commercial satellites that say Direct TV uses. Which is why I asked the question, not to be like “gotcha!” but to see how your framework relates to a more fractured media delivery landscape.


                  • We don’t own the satellites, but we do regulate them because they use public spectrum and out of concern for the economic harm they would inflict on the poor, defenseless broadcast companies due to the competitive advantage of not having to follow regulation designed for local broadcasters (I know, it’s ludicrous). So it can be regulated anyway.


        • Well, we could send all of the kulaks to the gulag and have them shot.

          That would solve the problem in the short term. Hell, Freddie’s solution would probably solve the problem in the short term. Allow the government to engage in (severely limited) banning of books and movies.

          The problem comes, for me, comes with how I would rephrase your question: If yes, what can we do that won’t become just as much a weapon in the hands of the Republicans when they return to power (and they *WILL* return to power)?

          I cannot think of any weapon that cannot be unjustly used against the interests of “The Children” even though it started out only being used justly in The Childrens’ defense.


      • But Jaybird, can’t you just admit (still waiting) that people, probably children, will die or be horribly scarred by attack ads as a consequence of what you’re saying?

        If you had morals, you would care about disadvantaged people enough to unrelentingly pursue policies with the goal of helping them and not be distracted by things like evidence, limits, or even constitutional rules. After all it’s widely known that such things are tools of oppression by the privileged who keep the poor and needy, poor and needy for sport.


        • Well if you admit to a problem but object to a solution, asking what solution is workable/ possible seems like a reasonable question. That seems to be the way to work toward solutions/understanding/ learning. But if you admit to a problem and never want to suggest a solution, just criticize, then……..well asking what a possible solution is still seems like a reasonable question.


          • Disclosure requirements are generally good, and the handful of corruption-focused political scientists on the issue tend to favor them, even as they tend to be skeptical of limits on donations and contributions. I think it also reasonable to ask whether, if things have gotten worse the more we have regulated campaign finance in this country, the problem is the regulations themselves. I think, morally and philosophically, there are strong arguments to be made for eliminating limited liability, although as a practical matter, that’s out of the question and would cause complete economic chaos.

            Here’s the big dilemma, though – the only real alternatives to having money play a central role in the volume of political expression involve the government deciding who, exactly, gets to lobby the government and express an opinion about the government. So you replace the power of money with the “power of pull.” There will be a lot of overlap between these two powers even to begin with, but within a pretty short time, the clear result will be that whoever has the “pull” will get the money.

            Ultimately, the best way to keep corporate business interests out of the system is to not give them an interest in the system. This is a problem for libertarians every bit as much as liberals, by the way – tinkering with the system in the direction of more or less government gives corporations a strong incentive to spend resources on politics and government. If your overriding goal, to the exclusion of all others, is to keep business interests out of the system, then the surest way of doing this is by not introducing legislation that will affect business interests.


            • “I think, morally and philosophically, there are strong arguments to be made for eliminating limited liability, although as a practical matter, that’s out of the question and would cause complete economic chaos.”

              Just an aside but I agree with this 100%.


        • I love children. Their tears are like nectar to my forked tongue and their cries like what I imagine Tori Amos sounds like to you people.

          Whoops, be right back, the oven just dinged!


      • Jaybird –

        I hold no illusions that the government is particularly good at mitigating injustice. The examples of inefficient bureaucracy, unintended consequences and blatant corruption are numerous.

        But, the wealthy do have disproportionate power over the poor (and the middle class as well). There is indeed injustice, so where does that leave us? I ask this with profound sincerity. As wealth and power have been consolidated over recent decades, is there no possible way to turn the tide or even slow it down?

        My sense of it is that erring on the side of keeping power away from the government is akin to unilateral disarmament. You’ve stated here recently that the government and corporations are in collusion and I agree this is true, but there is there any other force in our society beyond government that could possibly have any leverage over this consolidated power? I think the key is to break up the collusion and then try to keep these forces in balance. As to how to accomplish this, I have no clue.


    • Right.

      So how come the reverse isn’t true? How come poor and middle class can’t get free prime time air time to run their ads? If we use the logic that you and Volokh make then people without money shouldn’t have their rights restricted by media that decides what to air based on money. The common denominator in campaign finance reform laws is money right? Well if the rich shouldn’t be restricted, then neither should the poor.

      Oh, but the argument against this will surely be that corporations shouldn’t have to foot the bill, right? Seems to me the real freedom is for the power of the rich to never be questioned.


    • “But I can’t challenge that, because as Dave from the League has made clear, there are simply some opinions you won’t countenance, some you don’t even find fit to answer.”

      This may be the disconnect.

      The fact that someone finds a particular opinion not fit to answer (I presume, argue against) does not imply, for a second, that they don’t “countenance” the opinion.

      There are plenty of things that I tolerate that I do not approve of. There are things that I tolerate that I try my best to ignore.

      That’s what tolerance is.


    • Specious argumentation — and, it’s false as a general position regarding libertarians. You are beginning to sound bitter and petty. If you want to rail against corporatons receiving special favors over those those with less wealth, or those with no wealth, rail against progressive policies, also, then I will start listening.


    • My other commnt to this got lost down the thread. Freddie, I agree with you about the most powerful having the most influence, but you are wrong about libertarians. What is so difficult for you to understand regarding the concept of limited government — if there is no power for sale, no amount of money matters and corporate political power is meaningless — you can’t buy what’s not for sale.


  5. Obama didn’t take PAC money during his campaign, so he does have some credibility in denouncing the decision. Likewise, accepting limited individual contributions from brokers is still some semblance of monetary democracy, unfettered corporate advertising is not. Furthermore, Welch’s insinuation that because Obama crafts legislation that address corporate interests he is hypocritical to denounce their power to lobby the public just doesn’t make any sense.

    I’m frankly shocked by the response of libertarians to this decision; yes, McCain-Feingold was a generally in-effective regulation and strictly speaking it’s good that it has been revoked, but let’s not pretend that a completely unregulated campaign landscape is going to level the playing field or open doors for the little guy to get his voice heard. The majority of wealth in this nation is in the hands of a very small number of people, and now it will be even easier for them to consolidate political power as well.


    • I don’t think it’s right to say that this leaves us with a completely unregulated campaign landscape. Direct contributions remain limited, disclosure obligations remain in place (I’m fully in favor of disclosure obligations, btw). I stand by the rest of this post, but I take your point.


    • There’re some things that’re just impractical to regulate Trizz ol buddy. We can pass a law regulating the size of waves on the beach and tax and budget for officials to enforce it but all we’re going to end up with are a lot of federal employees with wet feet.


    • Perhaps I’m being too cynical, but I think there’s a pretty direct correlation between the amount of money going into media for a candidate and how well that candidate does in the election. Simply shoveling more money into the unregulated area can outweigh any limitations on direct contributions (particularly when a single candidate can break a year long effort to pass legislation that is supported by 59% of the senate, representing 67% of the population).

      My problem is not with corporate speech, it’s with the massively disproportionate capability to shape votes that an individual at the helm of a corporation has versus an individual outside of it. We cannot regulate it entirely, but at least the previous legislation forced corporate interests to get behind specific policy rather than specific politicians.


      • But is the correlation you cite causal or simply good betting? The big thing for me is that corporate contributions will be child’s play for the opposition to report. I’m extraordinarily skeptical that people will be so overwhelmed by a corporate advertising blitz that they will fail to vote their own tribe self interest.


  6. “Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place. In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).”

    As silver linings go, this is pretty weak. The larger participants will overwhelm the smaller corporations’ opportunity to participate rather handily. But as others have said, the law that was overturned was more a token than an effective barrier, so the impacts of this ruling won’t be too significant. Too bad, though, because sometimes even token resistance to our corporate overlords can give some comfort.


    • “even token resistance to our corporate overlords can give some comfort.”

      Perhaps. I wonder if the more likely effect is a false sense of security, so rather than looking for evidence of pernicious corporate influence in politics, people are disarmed. What do you think?


  7. Ugh sorry Scott you’re right of course. Bonehead move on my part.

    I know hardly anyone who would tell me that I have equal power to control our government that a rich person has. Someone who is genuinely wealthy has vastly more power than I do. Witness the Presidential campaign of Ross Perot, among other things. That is an imposition on my liberty. Self-governance is the heart of true freedom. Take it away, or dole it out in unequal portions, and any talk of real liberty is for nothing. And that’s the situation we have in this country right now. We don’t have one man, one vote. We have instead some ludicrous exchange rate of dollars to political efficacy. And that’s an imposition of the freedom of all of us.


  8. This is the decision that I expected the SC to return, and I agree with it given the particular case facts which the justices were confronted.

    However, I think there are constructive ways in which campaign financing can and should be reformed. I would support legislation that would limit campaign contributions to actual voters (which would eliminate contributions by artificial persons (corporations) and unions as organizations) and would further limit such contributions to be made ONLY to candidates for which said voters could actually cast a vote. One of the reasons such an obscene (in my opinion) amount of money is pouring into campaigns is because candidates (and their parties) can solicit contributions from anywhere in the country. Someone running for Congress in Maine can obtain funds from a little old lady in Idaho, etc. This may be “freedom of expression” but I think it can be rightfully argued that while political freedom is to be upheld at virtually all costs, there is a competing political freedom that is being lost while this unfettered contribution situations persists: namely the political right of those in any given political district (city, county, congressional, state house, federal) to make their own decisions without outside pressure and influence. This would also probably reduce the cost of campaigns and perhaps allow for more candidates who would otherwise find entry too prohibitive to join races. And it could potentially return accountability of elected officials to the actual electorate and reduce influence of organizations which would, in my view, be extremely desirable. However, labor unions and corporations and special interest organizations would, under this plan, still be free to voice their preferences by endorsing candidates (sans contributions) of their choosing. As for media time, I would suggest that only those corporations and organizations with actual presence in any given political district be allowed to run commercials and that money for such should come out of the direct coffers in that area (so, for example, if Walmart didn’t like candidate X running for country supervisor in Country A, only money made directly in Walmart stores in the county could be used to media.

    Please bear in mind, this is just a top-of-my-head scenario, and I have neither worked out all of its consequences nor do I consider it a plan made in stone. It undoubtedly carries various elements that might be considered unconstitutional in and of themselves. However, I think some variation of this basic proposal could vastly improve our system of government by putting more power back in the hands of the voters themselves, and so I put the general idea out here as basis for possible discussion.


    • hmm…reminds me of my #2:

      in fact it’s nearly the same, I think we differ on the voters only/citizens question. I thought about including that proviso, but it would have the chilling effect of compromising the right to petition government of those below 18, disenfranchised felons, and immigrants.

      Moreover, I actually think we want to keep dollars given aligned to where they come from for accountability reasons.

      I think the 7-11 down the street (and its owners) have the same right to support a candidate for local office as I do, as they’ll be just as affected. However, I think barring corporate donations will have the effect of creating employee bundles that are less obvious. In some cases, it might be easier to identify corporate interest as opposed to the interests of a bloc of its employees.

      However, on all other accounts, I completely agree.


      • Interesting. I hadn’t read that, but yes, the ideas are very similar. The disenfranchised can still express themselves in other ways, just not with dollars, in my view, although I am open to further thought on the matter.

        The 7/11 owners do have the same right. They presumably vote and would therefore have a right to contribute on that basis. Everyone working in the local Walmart from the manager to the door greeter would too. But 7/11 and Walmart as corporations would not.


  9. There’s a lotta whiney dems on this thread!
    Free speech, for everyone, all the time, SCOTUS got one right..get used to it you bunch of Bolsheviks. And, you might as well get used to talk radio which apparently isn’t going away anytime soon.
    Man, you people as so done…the problem is the stupid Neocons wait to take over..good grief!


  10. The problem with this ruling is the same simple problem with all rulings of “corporate rights.” Corporations don’t have rights. People have rights. Legal constructs do not. Members of corporate entities have exactly the same rights as everyone else. They idea that they gain new unalienable “natural rights” by incorporating is absurd on its face. Bill Gates has an unalienable right to free speech. Microsft does not. Because Microsoft isn’t a human being, and thus has no claim to the unalienable rights of Man.


    • First they came for Halliburton, and I said, “take that Cheney!”
      Then, they came for Microsoft and I said, “well Vista was terrible!”
      Then I had no pension.
      Then, they came for me because the Massholes elected a centerfold.


      • I’m just constantly amazed at how otherwise intelligent people can gloss over such a glaring flaw. The idea of unalienable rights are distinct both historically and theoretically. The “rights of Man” are unalienable because they are natural *rights*, as opposed to previleges granted by legal charter. The Declaration notes this in the language that “all men are created equal, and endowed by their Creator with certain unalienable rights.” Government is tasked with the preservation of these natural rights. The Constitution, and specifically the First Amendment, calls out specifically that the freedom of speech is one of those unalienable human rights, naturally endowed by the Creator, etc. The idea that a corporation – a legal construct existing of nothing more than the contractual language of it’s founding and the aegis of the state or federal authority by which is is formed – has unalienable natural rights is absurd on its face. If the League walks into a room and signs a contract to incorporate they have not created a new set of rights out of thin air. The only existing rights are the same rights that existed before the incorporation contracts were drawn up – those natural rights of the men in question. To suggest that a corporation, a legal construct of the state, has unalienable natural rights is to argue that the state has the power of “the Creator” by which it endows its creations – the corporation – with “natural rights.”

        It is absurdity and madness and the least conservative POV imaginable.


        • See the second Somin post referenced in the Addendum above. Actually, better yet, read this one:

          The issue isn’t that corporations have rights unto themselves, so much as that individuals have a right to speak through the corporate form if they so desire. I think an argument can be made that the decision should have been limited to non-profit corporations (your ACLUs, NRAs, etc.) for the reasons pjk mentions below, but I’m not totally sold on it. As a practical matter, though, such a distinction would be fairly meaningless, as for-profit corporations could easily just form non-profit affiliates through which to funnel the money. Besides, as things stand, there are no restrictions whatsoever on corporate donations to non-profits, including various ideological think-tanks.


          • Individuals have rights. Incorporation neither increases nor decreases the violability of those rights. The idea that the right to free speech of the individual demands the extension of rights to a fictious construct of many individuals is false. By suggesting that rights of the individual accrue to their theoretical collective “whole” by some sort of magical transferrence is incorrect. Such a theory privivleges the rights of those who can afford incorporation fees over those who can not, thus impinging the natural rights of the unprivileged individual by fiat of the state. Either natural rights are “created equal” or they are not natural rights. By magnifying special case “individual rights” through a corporate entity you degrade the rights of others. That’s unacceptable.

            Human beings have rights. Corporations don’t. Volokh’s argument is sophistry.


            • This is a correct assessment.

              The problem comes when politicians want to distinguish between types of organizations and claim that some have the “right” to express themselves politically but limit the right of others. They would limit the ability of corporations and unions to weigh in, leaving other large organizations such as the media (corporations with freedom of the press in their corner) and political parties even more room for getting across their views. This is an inequality among behemoths, all of whom are not individual human beings but conglomerations of them with agendas on their supersize scale.

              So, while ideally only human beings ought to have natural (and by extension, legal) political rights, our system subverted that basic premise long ago. In the current system as it stands, a law provision that favors some organizations over others should be (as it has been) overturned. Real reform that would acknowledge and implement the primacy of human beings as the holder of rights and alter the status of the artificial corporate “person’s” rights has to be undertaken separately.


              • I’m OK with differentiating between media and other types of corporations when it comes to speech. I mean, come on, it’s not THAT hard. Media companies actually PRODUCE the speech AND distribute it, which is hugely expensive and in the end has to turn a profit, ie, people have to like it and want to consume it. There will always be a few New York Posts and Washington Times floating around that don’t make a profit and exist essentially at the whim of their owner, but those kinds of companies will be (and are) pretty rare, and their influence limited to their audience. It’s incredibly different from allowing a company with billions of dollars in quarterly profits to buy up all the airtime in a poor district to run a smear campaign against a member of Congress who voted against a climate change bill or a farm subsidy. It’s a matter of degree and reasonableness and real life, not (as one commenter pointed out) intellectual sophistry. This is the benefit of a common-law system: Usually precedent, cultural norms, and common sense hold some sway. Usually.


                • Of course because the denizens of poor districts are well known to be easily influenced by deep voiced narrators and flashy visuals.

                  Come on, this is borderline insulting paternalism here. We have to protect people from the unfortunate repetitious exposure to speech! I will admit that political psychology does show that television advertisement does have an effect on viewers. What isn’t conclusive is why. CFR advocates often complain about the pernicious effect of smear campaigns, but let’s face it. Movie trailer ad campaigns are repetitious, uniformly positive, and routinely fail to drive overwhelmingly large audiences to see bad movies.

                  If there’s sophistry here, it’s that reports of Americans’ inability to see a commercial and ignore it are greatly exaggerated.


                  • Kyle, If there’s anything I’ve learned from observing the last 10 years, it’s that people aren’t rational, and if you repeat a lie long enough and loud enough it becomes truth. I’m not being paternalistic, I’m being cynical. Marketing works, and it works really, really well, and there are a million examples of shit products that people buy because the packaging is pretty or because they’re scared of something. I actually don’t give a goddamn about protecting the masses, I’m trying to protect myself and my family FROM the masses.

                    Anyway, you win. Enjoy your faith in humanity.


                    • The problem with my reading that post is my assumption that you therefore think that the people who humanity is likely to vote for can be trusted with the power to censor. That makes me want to write a note-for-note parody that finishes with “Enjoy your faith in government.”

                      Surely I’m misreading you.


                • The media is too concentrated for me not to be exceedingly wary of giving them more opportunity to speak during political races than other types of corporations (for-profit and not-for-profit). Too many “small town” newspapers all resort to printing the same AP article. Too often the same talking heads are on various news channels. Too many editorial pieces follow the same lines. And when one speaks of corporations worth billions, much of the media fits right in. I’m not saying that I’m opposed to the freedom of the press, but I recognize that much of the press/media is very organized and does try to “direct” the country’s political track. This is no different than other corporations that, through ads, make the same effort.


          • I think Volokh makes a terrific conceptual point comparing corporate expression to media corporations. Certainly we can agree that corporate news organizations such as CNN have the right to report on the news, even if that reporting features editorial content which is essentially opinion journalism in favor of one candidate/position. You can see where I’m going here: the sentiment gets very blurry with more controversial corporate media such as Newscorp, whose media outlets consist primarily of opinion journalism and that also happens to invest in other non-media entities which profit from the policies that may be effected by the reporting. While this may make us feel uneasy, certainly there should be no distinction in the eyes of the law, and the SCOTUS decision makes this case. Nevertheless, this only reinforces the need for comprehensive regulation of the political arena.


            • It’s only blurry because progressives are screaming that CNN (among other corporations) shouldn’t have rights according to the First Amendment.

              If you instead say something like “Congress shouldn’t make any laws… abridging the freedom of speech”, there’s nothing fuzzy at all. Not even for a second.


              • The rest of the bill of rights is equally transparent, why even bother to have a supreme court? Whenever two parties come to have a dispute, they should simply compare each position to what is so plainly stated in the constitution and easily come to a consensus. Such a system would be both plainly logical and efficient.


                  • Snark and sarcasm won’t make the question go away. Where do corporate entities attain “natural rights?” It’s a fundamental question, and if you can’t answer it your entire project disintegrates rather quickly.

                    Anderson Cooper has unalienable human rights. CNN does not. If we posit unalienable natural rights to unnatural entities – and let’s please not pretend that a legal construct is a “natural entity” – we must define where those unalienable rights are endowed. As an engineered entity like a corporate entity is by definition created by government any “natural rights” of that entity must be endowed “by their Creator” at the moment of their birth. In one fell swoop you have taken the endowment of natural rights from a “Creator” and placed it into the purview of the State. This is, of course, the absolute opposite of what natural rights theory is meant to do. It is also the sort of thing that should drive libertarian oriented theorists apoplectic. Because if the State suddenly creates natural rights, the State can thus alienate those rights at its discretion. Rights thus become the opposite of “unalienable natural rights.”


                    • My fundamental argument is that the government does not have the right to censor. Indeed, there’s an Amendment to the Constitution that says that it cannot.

                      This makes no claims to the existence of rights of the corporation or other ficticious entities. It basically argues that the government does not have the right to censor.

                      I’m trying to come up with an argument for how it’s not censorship when a corporation’s speech is censored. I’m unable.


                  • No. That’s just wrong. The entire concept of natural rights, the “rights of Man” is that they are distinct from the privileges of Charter. Rights are natural, “endowed by Creator” and thus unalienable. Privileges are engineered by the State, and thus alienable. If something is a “human right” and “unalienable” it is not created by the State. If something is created by the State it is a privilege and not a right. In your statement above freedom of speech, etc are “granted” by the state. As such, they are not rights at all, but privilege of Charter.

                    Is that where you want to go? Do you want to posit a government that can, if the Constitution is so amended, alienate the freedom of speech, arms, etc? That is, do you want to posit a world in which no natural rights exist, only those privileges of Charter that the government sees fit to “grant?”

                    CNN is protected by freedom of the press, not freedom of speech. Freedom of the press is much more akin to a privilege of Charter than freedom of speech, which has always been understood to be an unalienable right.


                    • I’ve always seen “Freedom of the press” to make a distinction between spoken and the written word.

                      That is to say: The government shall make no law censoring either the spoken or written word.


                    • I don’t have to posit, that exists. I’m with Burke on the issue of natural rights. They are metaphysic and they are not any more tangible or inalienable because of the eloquent language of the Declaration of Independence.

                      Natural rights are not delineated by natural law and enforced by natural government.

                      So the answer to all of your questions is, yes. This isn’t a world that I posit, this is the world as it exists.


            • “Nevertheless, this only reinforces the need for comprehensive regulation of the political arena.”

              This is where the difficulty arises – there’s not really a way of proving this (or, to be blunt, its antithesis). It comes down to one’s level of faith in the competence of government to accomplish things with minimal unintended consequences. I have a hard time seeing how this could be accomplished, in practice, without significant damage to the concept of a free and independent media. That’s a tradeoff I’m just not willing to make. But if one has different priorities or if one has a greater faith in the ability of government to minimize that tradeoff, then one would come to a different conclusion.


  11. The other issue is that the airwaves are a limited resource that’s historically been owned by the government and regulated for the public good. While I don’t have a problem with a corporation advertising on the internet – essentially an unlimited space – I am concerned with a corporate entity coming into a media market and simply buying out all of the available ad space for one specific candidate. Free speech for some, miniature American flags for others. One possible way to regulate this would be to get away from a model where the time goes to the highest bidder (as this too is an infringement on the first amendment) and base it on some other feature, for example a minimum number of supporting signatures. Though the only solutions I can come up with still seem like security through obscurity.


    • I’m an incumbent and I endorse this reform. The airwaves? From the days when televisions still had antennae? Cable is regulated sure, but the thing with cable is they can keep adding channels…we just don’t have the same scarcity of access issues we had 50 years ago.

      That said, can I just say I’m sad for the demise of Air America, they had some impressive talent and I’m a little surprised nobody here has said anything yet…unless I missed it.


      • Just about everyone from my parents generation gets their political information from the radio during their commute and then from local news at home. From what I’ve read about these mediums on the internet :) they’re still quite limited.


  12. Human voters are interested in all sorts of things: education, health care, foreign policy, religion, etc. Corporations are, by their very nature, interested in only one thing: making money. Which is great, and they’re very good at it. However, what this means in practice is that if you give corporations the same political rights as human citizens, they will use their vast, vast resources for one thing: rent seeking. Rent seeking is bad for society, always, and allowing such powerful entities to do so unchecked could seriously unbalance a democratic system. There is precedent for limiting free speech, as it is not an absolute right, and to my mind this was a good place to do some careful limiting. If you’re with me to this point, I would make the further argument that just because there were already some holes in the dam (PACs) is not a great reason to chuck down the whole thing and see what happens. Anyway, I guess we’ll see what happens.


    • The counter-argument that I’ve heard is that corporations are essentially assembled speech, and if the individuals therein do not support the message that the corporation is putting out then they can simply exit. This seems to be the basis for the argument in this judicial decision as well.

      Personally, I think it’s an extremely optimistic view on how much freedom the average worker has in deciding the policy of their employer, particularly in a recession. Let’s just tie votes to your employer like we do with health-care and get this over with.


  13. The corporations now formally own the American government. Please welcome Mitt Romney, next president of the United States.


  14. Mark, not to say it would pass muster at Scotus at this point, but as to your practical argument about the benefit of smaller corps. and non-profits being able to get in the game (which is a powerful one, no doubt), could this not be readily accomplished if we lifted the ban on IE’s but capped it at a relatively high ceiling? This would allow smaller corporations to participate in the process, but prevent economic hyperpowers from dominating it. I realize at this point it is clear this will not pass Scotus scrutiny, and that you ask who will set the the level (obviously, we would through our representatives.) But outside of failing a purist 1A test, wouldn’t that be the a good way to achieve what you seem to think are two worthy goals (allowing broader participation by organizations while lessening the influence of major corporations)

    And again not arguing that passes muster, but isn’t arbitrary, but on the the media/non-media corporation distinction in practice you yourself really not admit a important distinction between the interests of, say, the NYTimes or WSJ, which are struggling to survive and consider their overarching mission to be a public service, as opposed to, say AIG? In other words, if through its speech AIG’s pursuit of its parochial interests through seeking to influence the outcome of elections could come to dwarf the influence of the Wall Street Journal’s editorial page, you believe that is a completely indifferent fact legally speaking?


    • *Blech.*

      “And again not arguing that passes muster, but isn’t arbitrary, but…”

      Read that as:

      “And again not arguing that it doesn’t fail to pass muster because it’s arbitrary, but…”


  15. “Corporations and unions are nothing if they are not associations of actual, real persons.”

    Yeah, real persons who can already vote, donate money, whatever. Why do they need a SECOND outlet? Lame…


  16. Pingback: Random Nuclear Strikes » Citizens United v The FEC

  17. > Somin also addresses the argument that “corporations are not people”

    No, he doesn’t. He sets up a false dichotomy.

    If corporations aren’t people, then corporations don’t deserve free speech rights because they don’t acquire child permissions from being people. They might still deserve free speech rights, but that’s an argument that needs to be held separately.

    People (A) deserve Free Speech Rights (X)
    Corporations (B) are not People (A)
    Ergo, Corporations do not inherit Free Speech Rights (X).

    If “the press” deserves free speech rights because they’re “the press”, it doesn’t matter if “the press” is a corporate body or not. It doesn’t deserve free speech rights because it inherits child permissions from being people (and people have free speech rights), it *has* those rights itself, because it’s “the press”.

    The Press (C) deserves Free Speech Rights (X)
    The Press (C) may also be a Corporation (B)
    The Press does not inherit Free Speech Rights from being a Corporation, because Corporations aren’t People.
    … but it doesn’t need to, because we already decided that The Press gets Free Speech Rights.

    In a logical combinatorial sense, The Press occupy the same relation to Free Speech rights that People do.

    Now you can certainly argue that PACs or unions or whatever qualify as Corporations, and thus should be under the same restrictions, but that’s a whole ‘nuther ball of wax.


    • Very well and logically correctly stated.

      The press gains its freedom of expression from the constitution. It does not gain any inherent “right” to be (or not to be) a corporation, however. We can, if we choose, make laws or even regulations that require the press organize in another form that is less inclined to lead to concentration. Put another way, we can limit who may incorporate and under what conditions for any and all kinds of businesses, including the press. We can and supposedly do regulate anti-trust and monopolistic practices, and there again, if media corporations merge or otherwise consolidate in such a way that violates these regulations, they are not immune from the consequences because of their specified constitutional freedoms.


    • Volokh challenges this fairly convincingly by stating that “freedom of the press” is the freedom of an activity, i.e. publishing and disseminating, rather than a specific entity. Otherwise, how would you classify a media corporation like Newscorp, which engages in classical “press” activity as well as non-media oriented investments?


      • > Volokh challenges this fairly convincingly by stating
        > that “freedom of the press” is the freedom of an
        > activity, i.e. publishing and disseminating, rather
        > than a specific entity.

        Er, you don’t win an argument by claiming that your definition proves your case (look up tautology).

        Of course, I’m not a lawyer, and I have no idea what sort of reasonable argument you can make to claim that this is the proper interpretation of the language.

        That said, if “freedom of the press” is the freedom of an activity, i.e., publishing and disseminating, then you have zero grounds to prohibit any sort of publishing and disseminating. Congress can’t do it, it’s verboten.

        Copyright? Gonzo. Anti-pornography laws? Gonzo too. Most of your intellectual property laws? Based on clearly unconstitutional laws.

        You can go ahead and make that case, I suppose (it certainly has some level of merit), but there’s a metric boatload of precedent to go against there.

        I think classifying “freedom of the press” *solely* as an activity is a rather gross oversimplification.


      • > Otherwise, how would you classify a media corporation
        > like Newscorp, which engages in classical “press”
        > activity as well as non-media oriented investments?

        I personally would say that once you start engaging in “non-media oriented investments” you’re clearly not “the press” anymore. If you’re owned by a conglomerate, you have a staggeringly huge potential for conflict of interest, and thus should no longer be afforded the legal protection granted to the press.

        But that’s just me.


        • Lucky for us then that it is just you. These rights and protections exist to prevent the government from shutting down criticism of it, whether that criticism comes from Macy’s or Habitat for Humanity or Bob (Cheeks?) doesn’t matter because SCOTUS has decided to err in favor of reserving rights for the people (formally assembled) rather than not.

          You do realize that would strip legal protection for basically the entirety of the American press, historical and current. Also, what is a “not media oriented investment”? It’s hard to see how any economic activity from the media wouldn’t be suspect under your rules.

          Not to mention potential conflict of interest is not the same as actual conflict of interest.


          • > You do realize that would strip legal protection
            > for basically the entirety of the American press,
            > historical and current.

            Current, yes. That’s easily corrected. Historical, how so? Remember that when the Constitution was written, there were no media conglomerates.

            > what is a “not media oriented investment”

            That’s not my term, but generally I would say that making refrigerators is clearly not a media oriented investment. You really think it would be difficult to come up with a fairly simple framework for what constituted press related activities and what does not?


            • True, there weren’t conglomerates but the press, insofar as it existed, was hardly independent they were commercial, partisan, and later owned by magnates who did hold considerable investments in other industries.

              I think the freedom of the press line of comments, misses an important point. If I have a freedom to assemble, and a freedom to speak, and a freedom to petition the government, it’s hardly a stretch of the constitution to presume that my freedom to speak or petition my government through associations remains as strong as it does as an individual.


              • > it’s hardly a stretch of the constitution to presume
                > that my freedom to speak or petition my government
                > through associations remains as strong as it does
                > as an individual.

                Perhaps it is “as strong” (I disagree, but we can pass on that for the moment), but it’s certainly *different*. The two are incommensurable.

                If I wish to donate money to a candidate as an individual, I can do so. If that candidate becomes unpalatable to me for whatever reason, I can cease donating money to that individual. It is a simple bidirectional trust relationship.

                However, once organizations get involved you start to complicate that trust relationship, which makes it much more difficult to audit and much less likely that you can decouple your relationship. A couple of examples:

                If I pay money in union dues to a union, presumably this is to further the aggregate desires of people in my union. However, if I disagree with the union leadership as to what those aggregate desires actually *are*, I cannot simply decouple my payments… I can’t say, “Well, one eighth of our union dues go to political operations, I just won’t pay that one eighth of our dues.” If I raise a stink about the candidates the union supports in an attempt to mitigate that decision, I can suffer all sorts of ancillary consequences. So it’s no longer a simple bidirectional trust relationship like the individual contributor, it’s coupled (in some cases tightly) with lots of other trust relationships. If my boss is also my union leader, disagreeing with the union’s political contributions can limit my upward mobility at my job. All of a sudden, choosing not to support that political activity comes with a much greater set of consequences.

                The same holds true in the case of a corporation; a rather large swath of investment in corporations comes not from individual investors, but aggregations that are themselves aggregations. I pay money into my 403b, and again into a mutual fund, whose leadership invests the aggregated funds into a bunch of corporations. Some of those corporations may take those funds and turn around and lobby against activities that are in my interests. Even were I able to keep track of all of the money and where it goes, revoking my investment is of null consequence to all the players.

                In addition, corporations can accept investment from anywhere. A middle class investor in Germany or China or India doesn’t really care if Southern California Edison lobbies successfully to lower air emission standards in the Los Angeles basin; it’s an externality that is so far removed from the other players it’s ridiculous.

                I pay tax money to support the employment of firefighters. They have a pension fund. That pension fund invests in companies. I don’t like what those companies do. I can’t hardly dictate to the fire department how they run their pension fund. Even if I were to provide a completely equitable investment, there’s no way for me to influence their decision making process.

                Organizations, because of the fact that they must aggregate their goals to a subset of the interests of the members, will always operate in some ways that are not beneficial to all of their members. In many cases, this can be corrected (or compensated for) through a number of different mechanisms. In the case of corporate behavior, most of those correction methods come through the mechanism of regulation.

                Allowing (at least the specific case of) corporations the right to participate in the political process is effectively allowing them the opportunity to change the rules under which they operate by altering their own auditing and oversight mechanisms.

                From a security standpoint, this is always a bad idea. Organizational self-policing does not work.


                • I wasn’t going to comment any more on this post, but these are really good points so I really wanted to get that across. I actually agree with a lot of what your raised, but I don’t think they were addressed at all under the restrictions invalidated last week.

                  I would say, I do agree with measures requiring the members of unions and associations, and shareholders of corporations to sign off on political advocacy for the very reasons you mention. Also, while shareholders can leave a company, not all union members can, so I’d support giving them an exit too.

                  The fundamental problem here is that money is fungible so the problems vis a vis tax revenue are rather intractable without draconian spending and accountability restrictions.

                  I have more of a problem with specifically excluding corporate voices from the political process than I do with including them. Via the same process people self-regulate yet we haven’t made it illegal for the IRS to collect back taxes or voted the income tax down to 0%. Last I checked, there were any number of regulations affecting businesses of all stripes. I think Whole Foods should be able to lobby for supports for organic food production as well as United should be able to lobby for support for an Olympic bid. I think it is more prudent to err on the side of inclusiveness rather than exclusivity when it comes to the political process.

                  But umm good points Pat, there are things I have thought about and some new ones to mull over.


                  • > I have more of a problem with specifically excluding
                    > corporate voices from the political process than I do
                    > with including them

                    Why? That’s not meant to be snarky, it’s an honest question. What has happened, historically or in contemporary society that leads you to believe this is a serious concern compared to the potential alternative?

                    I can’t think of a time when a corporation has suffered from legal prosecution in a manner that represented a serious miscarriage of the political process (except at the hands of another corporation or monopolizing force back with the Rail Barons), but I can think of several hundred examples of the opposite exception scenario. I’m not exactly the world’s greatest student of corporate history, so I’d gladly accept counterexamples to mull over. I just don’t happen to know of any myself.

                    I can certainly theorize cases where it *might* occur, of course. If you think about it long enough you can always come up with possible injustices. Currently, though, I think there’s a significant empirical burden of evidence to show that corporations will remove oversight, enforcement, and competition when they can, and if they have a venue to do this through the political process they will.

                    Note, I’m not necessarily assuming malice in this. Audit is, inherently, wasteful. Any right thinking, completely honest company would lobby hard to have it kaboshed when they could; they’re honest, why do they need to be audited? It’s just a waste of their time.

                    Well, the answer is, “Because not everybody is honest, and unfortunately we can’t tell ahead of time who is and who isn’t.”

                    It’s in investors’ best interests to have oversight of their investments; they can’t possibly do it all themselves (and indeed, we don’t really want them to *have* to in all cases, because we want them to invest and grease the economy with all that lovely flowing money, instead of turning Joe Average into a Depression-era guy who would rather sock money in a mattress than trust it to any company).

                    Whole Foods lobbying for organic food production is great, I’m all about reducing pesticide use… but it would probably be far less of an issue if we didn’t have the grotesque monstrosity of our agricultural subsidies that we currently have… largely because Con-Agra and the like pour buckets and buckets of money into various Senator’s pockets.


  18. The only rule required is that those monies contributed by citizens, unions, public/private organizations, corporations to each candidate for federal office be made known to the public.


    • I would agree with that, with the caveat that I still think that in the name of reducing the outrageous costs of campaigns, it is worth looking into restricting contributions so that outsiders are not the support of a candidate for whom they cannot vote. I don’t want money from New York or Texas flooding in to my congressional race — that dilutes the power of the voter within his own voting jurisdiction.


    • This would make sense if it was possible to do this in a meaningful way.

      Who are “Citizens Against Fiscal Irresponsibility”? How about “Family Values Coalition”? We all know who the RNC and DNC are, and the AFL-CIO, but fully 9/10ths of the supporting organizations listed on the California ballot initiatives have no meaning whatsoever to the average voter. If you can’t tell who they are, what other organizations they’re affiliated with, etc., you can only guess part of their agenda by seeing their name on an endorsement list. That’s not meaningful audit, in any way.


        • Certainly, but there you’re just extending the necessary trust mechanism. With all the inherent problems thereof.

          I really think, given the general lack of informed decision making by the body politic, that adding another layer of abstraction is necessary or advisable.


            • This won’t work, Bob. The theory is nice, the implementation of it is going to fail.

              You’d have to be able to authenticate every political donation. Given the fact that we already can’t authenticate every fiscal operation reliably, I’m not seeing this happening.

              Let me put it to you this way: if you propose a framework by which we can authenticate political donations, I’ll punch a couple dozen holes in it to show you why it won’t work. Authentication is a staggeringly difficult problem (in the financial world, it costs us billions a year because we can’t get it right… in the electronic world it costs us billions more).

              If we can’t prevent illegal immigrants from getting driver’s licenses, we’re not going to prevent shady politicians from accepting bogus donations. We’re just going to increase the desire for illegal IDs.

              Which might be nice if you’re a morally bankrupt person working in a DMV somewhere, but it’s not going to solve your problem. It’s just going to move the nefariousness over two steps and down a door.


              • “If we can’t prevent illegal immigrants from getting driver’s licenses, we’re not going to prevent shady politicians from accepting bogus donations.” Yes, yes we live in a less-than-perfect world and any system can be corrupted, bypassed, cheated. I was trying to make it really simple, but the truth is, in order to re-establish the republic we will require moral citizens and we’re likely to see The Book of Eli before that happens.


      • Right to privacy? Sounds like another thread…do we have a right to privacy mentioned in the Constitution? Publicly listing shouldn’t be a violation of ‘speech.’ Isn’t political participation a public thing?


        • If the Ninth Amendment means anything, anything at all, it means “Bob Cheeks, please never use ‘I don’t see it in the Constitution!’ as a reason to deny or disparage a right.”


          • JB, every day the gummint enters someone’s house uninvited.
            Every day the gummint goes through a citizens papers without their permission.
            The is no “Right to Privacy!”


            • The activities of the government bear no direct link to defining rights.

              The government (our government, other governments, etc.) violates basic rights all the time. That doesn’t mean you don’t have the right, just that it’s currently being infringed.


        • Any person/organization should be ‘free’ to contribute any amount of money, without gummint restriction, to any candidate it/they choose. But that contribution should be a matter of publick knowledge…it is here in Columbiana County, Ohio and I haven’t seen anyone sued yet.


  19. I think your argument is simplistic and over-estimates the positive impact for smaller “corporations.” Corporations are not individuals and should not have the same rights as them.


    • So the federal government can search the offices of a company whose CEO is critical of the government or seize the assets of the company on the basis that corporations have no rights?

      I think your approach is far too simplistic, especially given that corporations are, at their core, an association of individuals. Assuming that the government demands surrenders of the constitutional rights of individuals in a collective setting on the basis of a legal designation is a little more complicated than that.


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  21. This was a horrible decision based on a flawed application of the First Amendment freedom of speech. The opinion states that invalidating parts of Citizens United argument or upholding the Court’s own precedent would lead to a chilling effect on political speech. It then makes the unbelievable leap from the confines of this particular case to the broader application of free speech with the following justification, “It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin.”

    Well has the Court considered the contrary; that their simplistic application of the First Amendment creates for a system where free speech exists in theory but not in practice. Where it isn’t the domain of every citizen, but only those who can afford it? I’m sure that’s not what the Founding Fathers intended when they drew up the Bill of Rights. They didn’t anticipate big business manipulating the minds of vulnerable voters with attack ads or buying politicians to serve their interests. If Citizens United had simply not accepted funds from a for-profit entity, they would have been eligible for an exception. Instead of simply upholding their precedent, the Court decided to reexamine the entire issue of limiting campaign financing, flout its own precedent, and supersede laws created by, lest Caesar’s incarnate CJ Roberts forget, an equally if not more important branch of the US Government, our legislature.

    As the Huffington Post states, “Constitutional scholars are calling this is the most tragic assault on our human rights in the 220-plus years of our Republic. How did things come to this?… They [corporations] had privileges, not rights. But no more. Powerful corporations burst their legal shackles using a backdoor approach through the Supreme Court to amend the real people’s Constitution by judicial fiat. Our democracy has been hijacked by corporations through illegitimate usurpation of rights intended for human persons.” This is, of course, the fundamental flaw in their opinion. If they over-turned any precedent, it should have been this.

    Clearly, the effects have yet to be seen. And perhaps those most cynical among us may say that it simply won’t matter. Some may even argue that it allows for smaller “corporations” to enter the political fray. I disagree with both forecasts. At the very least, this was a psychological blow to a country whose faith in its politicians and political system was already low. In the worst prognosis, the ramifications of the decision could make the US a nominal democracy, but a virtual plutocracy.


    • “Constitutional scholars are calling this is the most tragic assault on our human rights in the 220-plus years of our Republic.”

      There are so many things wrong with this sentence but the obvious one is that anyone who actually fits the title constitutional scholar would well enough aware of the alien & sedition acts or should free speech not be a human rights concern…I don’t know how about Dred Scott and slavery.


      • I don’t understand your point about the alien and sedition acts. Perhaps you could delineate.

        As far as the superlative, we all have our rankings. I’m sure there are some constitutional scholars that believe that this was the worst violation, which doesn’t equate with the only violation. You, as a citizen of United States of America, are perfectly free to have your own rankings.


        • “The Democrats are not alone in their concerns about the ruling. Trevor Potter, a Republican lawyer who served as general counsel to the John McCain 2008 campaign, told Salon, ‘I think it was a mistake of historic proportions by the Court — by five justices. I think it’s embarrassing to overturn a decent decision by the Court just because one justice [Justice Sandra Day O’Connor] has retired. I think the Court ignored its practices of avoiding major constitutional decisions and overturning acts of Congress if there is some other way of resolving the case. I think the Court has made a mistake by diving into what is a very political issue and by overturning its very recent precedent when the facts haven’t change … [The Court also] makes a mistake by failing to understand the effects of this decision.’

          This week’s ruling overturns an earlier decision in 2003, which upheld the constitutionality of most of the McCain-Feingold campaign-finance bill. Justice O’Connor, who was still on the Court at the time, voted with 5-4 majority. The new ruling, according to Potter, ‘is likely to lead to a significant impact on the legislative process that the Court doesn’t understand because not a single justice on the Court has served on a state legislature or in a legislative body.'”


        • A mere nine years after the Constitution and Bill of Rights were ratified, the United States Congress passed the Sedition Act, making it a crime to publish “false, scandalous, and malicious writing” against the government or its officials.

          Making it a crime to say bad things about the government or its officers is the type of law that expressly forbidden by the first amendment and is a far greater assault on a free society by any measure than allowing the wealthy to contribute to their hearts desires to campaigns (which interestingly enough, they could do for much of this nation’s free and open history). The Sedition act was a big deal, it directly contributed to the Virginia & Kentucky Resolutions, the electoral victories of the Democrat-Republicans in 1800, and early arguments for nullification, one of the prevailing constitutional issues of the antebellum period. It pops up here and there in 1st amendment jurisprudence and has been widely and roundly criticized. It is not without reason that I would doubt just how scholarly any so-called constitutional scholar is who used such hyperbole in the face of perfectly good examples of actual tyranny.


        • We’ll just have to agree to disagree, as in the thread above, you don’t have confidence in a free market — you believe the market has corrupted government — and, I assume, the only answer is to control the market and trust government. I don’t really know what you believe because I’ve never seen where you propose a better situation than what we have, only that the free market, limited government approach will not work. So, what do you think will work? This is an honest question — I know what you’re against, but what are you for?


          • To be totally honest, I’m not sure. I think…it depends. I don’t even know how much it matters. At one point I might have agreed with that line about needing government to control the excesses market but I’m not that naive anymore (mostly because I don’t trust government to do a good job of it above a certain minimum level). The problem is this has left me without a particularly coherent ideological position, and that therefore I come off as someone unprincipled railing against other people’s principles.

            And it’s not that I think the market is corrupting government, just that the corporate structure (which yes, was indeed created by government) has had a corrupting influence on markets and government both.

            And it’s not that a free market wouldn’t work necessarily, though I’m skeptical, so much as I don’t believe one can exist.

            I’d rather just push for incremental efforts at making government better, because it’s what we have, and structure markets as best we can with a minimum of side effects (using both government and private mechanisms to balance each others flaws). This seems like a hard enough task without scrapping everything (and how will you do that?) and starting over, though I’m sure you think it’s actually harder to do this, and in any case I’ve made my peace with what you think is tyranny.

            But when you get down to it I think both the federal government and corporations are too powerful, actually – that at least we agree on. The problem is that I really honestly don’t see how you reduce the power of one without increasing the other.


  22. I’m just going to point something out.

    Under McCain-Feingold, under the most ethical Congress in history, and under President Obama – who takes every opportunity he can to decry the pernicious effects of lobbyists, special interests, and who was elected not by Wall Street but by the small amount giving of Main Street, America was days away from mandating that every American be forced to purchase health insurance from private providers by threat of severe financial penalty.

    I’m going to repeat, days away from using the force of law to make every American purchase a private good/service.

    How is the system not already captured by corporate interests? What is this corporatepocolypse that people fear will occur and how will it be worse?

    It seems to me that the thing to fear would be that private companies would use their influence over the government to force people to buy their wares while blocking meaningful, popularly supported reforms of their industry, like the finance industry or the energy industry. IOW the thing to fear was basically what’s happened in the past 14 months. The only bills that really passed were ledbetter, credit card regulations, and huge financial giveaways under the TARP/bailouts and stimulus.

    McCain-Feingold = Maginot line.

    A lot of the critics’ defences of BCRA are similar to saying “without the Maginot line, the Germans would’ve won”…in Paris 1942.


    • Perhaps that’s because a large (though not large enough) proportion of Congress actually believes that from among the available options, such a mandate actually is good public policy. Corporate influence is pernicious, but it has to actually be shown to be dictating policy. It’s not a universal causal explanation for all that happens in Congress. Do you really think the reason we’re were going to get a mandate and not single-payer is because the insurance lobby rigged the game that way? Could the natural ideological tilt of the way the country is represented in Congress have had something to do with that? Or are you explaining the Dems’ century-long crusade for universal health coverage (initially hoped to be a government system) purely by imputing no motive other than a desire to mandate private coverage in return for the backing of the health insurers? Corporate control/capture is a huge problem, but it isn’t the monocause for every action and effort undertaken in Congress.

      Wyden-Bennett mandated private coverage as well.


      • Michael is right. As I stated in a comment above, the idea that corporate capture gives corporations the ultimate power misses the reality that government has the ultimate power and uses corporations as muscle to help implement power — these corporations will be expendable when they get in the way of the State.


        • Mike & Michael,
          I want to be clear I’m not saying “LOOK AT THE CORPORATE CAPTURE OF GOVERNMENT.”

          I’m saying what people are saying corporate capture of government will look like, looks a lot like where we are now. Reconcile.

          I know they look similar, but I’m asking, based on a premise, that I may or may not agree with, how does the ‘future death of democracy’ look different from today?’

          Personally, I think lobbying isn’t that bad, every American is represented by various lobbying groups in DC, we talk about special interests as though they were distinct from the public interest, when really they’re narrow interests, more specific than “the public interest.”



      • Perhaps, perhaps not. “Or are you explaining the Dems’ century-long crusade for universal health coverage (initially hoped to be a government system) purely by imputing no motive other than a desire to mandate private coverage in return for the backing of the health insurers?” No, I’m not.

        Nor did I speculate as to exactly how and why HCR took the form it did.

        What I was saying was that the fear of unlimited corporate spending on candidates that appears to be rampant in these comments seems to be a fear of a world that we already live in. Government giveaways to corporations (if you don’t like HCR, how about the carbon permit giveaways in cap and trade legislation, stymied reform efforts, and the dilution of legislation meant to help the public good into legislation that either doesn’t or does so at great benefit to the donating companies.

        Quite honestly, what could be worse?


          • Depending on your definition of important, that could still be true.

            I’ll admit to a lack of imagination in this case but all things considered, I’m anxious for an imaginative critic of Citizens United v. FEC to share with me a vision how the decision will result in a political environment worse for “the small guy” than today. So far, nobody has indulged me.

            It’s not a trick question, not a sarcastic or facetious one. It’s an actual question.


            • Of course no one knows what will happen, and whether that will be worse or not is entirely a matter of a person’s own view of what is good or bad. I suspect whatever I claim will get worse you will say could be seen as not so bad, and you will be right. I don’t claim to know what will happen after Citizens United, and even if I did I couldn’t compel you to agree with me it would be worse than what we have now. It is you who is making a certain claim about what will happen and its normative value. If you want to be sure you’re not thinking of something you may not want to happen, then you should do the work and think it through yourself.

              In any case, I have nowhere in this thread of the previous thread disagreed with any of Marks’ main points. I have in fact not even taken a position that regardless of effect, this decision was not necessary under any reasonable interpretation of the First Amendment. And as far as the views in this thread, I don’t know that I can agree with you that a critical view of this decision is in fact rampant in this thread. It seems to me it’s about even, if not tilted toward supporters of the decision. But I think we can both agree that one view of the decision’s legal propriety and practical consequences is indeed rampant here: yours.


    • Speaking of conflation of concepts, TARP and ARRA (better known as the stimulus bill) are two different pieces of legislation. None of the ARRA was used to bailout the banks or the auto makers. The majority was tax cuts, help with COBRA, and spent to prop up state budgets that were reeling from the financial and housing crisis.

      If you want to criticize ARRA, you would be better off saying that it focused too much on being a bandaid rather than a true stimulus (job creation) package. Maybe if it were larger, as several economists argued, Paul Krugman being one, it could have actually done both.

      You may even want to suggest that we should have acted more like the Chinese, who created a $586 billion package of their own, but unlike the US Congress passed it in November, two months after the fall of Lehman, as opposed to in January. See the totalitarian regime does have its advantages; it’s simply more efficient than a factious Senate that quibbles about long-term debt when several million American families are faced with immediate financial ruin.


        • Thanks for your sarcastic and meaningless comment. Obviously, I’m not advocating for totalitarianism. My point is that many Americans are concerned about cheap Chinese labor and the trade deficit, as they should be. But they also should be concerned about China beating the US on a number of fronts…. This is an example of how their government acted more decisively and to the benefit of its people.

          And to Kyle’s earlier point, which I forgot to mention earlier, TARP was passed under the Bush administration so you may want to cross it off the list of Obama’s accomplishments to date….


          • “See the totalitarian regime does have its advantages;”

            I was being sarcastic because this is ludicrous — in order to get the “advantages” of totalitarianism you have to accept all the disadvantages, which far outweigh any advantages perceived out of context.


          • “And to Kyle’s earlier point, which I forgot to mention earlier, TARP was passed under the Bush administration so you may want to cross it off the list of Obama’s accomplishments to date….”

            It was passed by a Democratic Congress and was wholly supported by President Obama so he really doesn’t have distance there, but this isn’t a focused criticism (or list) of the President’s accomplishments so much as a general critique of our system -under campaign finance reform – looking very much like the landscape predicted by those clinging to campaign finance reform as a bulwark against the influence corporate and special interests.


      • NSS.

        I’m not criticizing the stimulus, I’m pointing out that it involved lots of spending, particularly in certain sectors of the economy, that benefited the private sector. In fact, last I checked, that was kind of the point of the stimulus.

        So in a list of things the government has done, where many lobbyists were involved, and secured money that would benefit private companies, the stimulus fits perfectly. A list that also includes the TARP and auto bailouts, the latter which benefited dealers and suppliers down the supply chain. In fact, had the stimulus been larger the way you suggest, it’d be even more of what I’m saying it was…


        • Details and facts matter Kyle, and if you can’t get them right, then your argument is simply not as credible.

          He does have some distance on TARP because of some of the decisions made by then Treasury Secretary, Henry Paulson (appointed by Bush). But I don’t have the time to explain…. TARP was also necessary to buttress a couple collapsing sectors. The financial sector being the most critical. Just for perspective, the Europeans threw $2,546 billion to recapitalize their banks. Our approach was viewed by many as short.

          Anyway, argument is only productive if it forces you to check your facts and consider alternatives. If all you want to do is repeat the same refrain, I’m sure the talking heads will be happy to take you on board. Nonetheless, thanks for allowing me to participate in the discussion.
          Long live the Republic!


          • When was I inaccurate? I never stated that the stimulus and bailouts/TARP were the same, I said they were examples of pro-business, pro-corporate legislation.

            I didn’t make a normative evaluation of TARP or the bailouts, again, I was making the point that major legislation only passes if it’s pro-corporate. Nothing you’ve said has contradicted that point or shown it to be factually inaccurate.

            I like how your one charge that Obama (though not the Democratic Congress that I’m talking about) has distance from – though some relation to the TARP, you explicitly don’t back up. I doubt that, but don’t take my word for it, take Senator John Kerry’s


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  24. Despite what some of you may be expecting, I’m actually pretty okay with this ruling. Partly this is because I am a member of several non-profits, partly because but mostly because I’m a First Amendment absolutist even before I am a liberal. One of the few things I’m totally certain about in politics.

    I like that they still upheld the “and I approve this message” tags though (which I suppose fall under disclosure requirements?). A rich source of comedy, that is.


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