Worst SCOTUS Decision of the Decade, Hard to Top

[Arabian Knight]

Originally Posted by JPS

Ak, you keep claiming that this point is being ignored, so I want to reiterate my response -- I dissent from the narrow definition of democracy that your claim presumes.

You say that allowing corporations to participate in public debate over political issues that affect them directly undermines democracy because, by comparison, individual voters find themselves outweighed. This presumes a definition of "democracy" that is restricted to individual voters only. "Democracy" is thus harmed (or benefited) solely by its effects on the influence of individuals.

I respond that corporations and other collectivities are part of the democratic polity and have legitimate and distinct interests in the policies established by that polity. Thus, to prohibit them from speaking or participating in the debate denies democracy in the name of protecting it.

It is only by presuming the inerrancy of a rather self-serving conception of "democracy" that you can make your sweeping claims that you claim face no rebuttal.

I dislike your definition of "allowing corporations to participate in the public debate." I think there is a substantive difference between participating in the public debate and having the ability spend unlimited sums of money. The effects of wealth should not be glossed over, especially not in their effects on, I'll say it again, the integrity of democracy.

I've stated in my other post but I think this merits further response since I think its the crux of our disagreement.

I believe corporations should be allowed to participate in the public debate and show their side of the story, they are certainly part of the polity and I don't disagree with you there. However, I think they achieve this more often than not: they have incredibly lobbying influence on K Street, they frequently have private access to senators from their home-states or where they have large financial dealings, they produce ads to create a corporate image year round, they send their 'experts' and spokespeople on news shows and talk shows all the time, they have access to media and a wide range of news media very firmly defends 'corporate political views' (The Economist, Wall Street Journal - not to say they won't ever speak against corporations, but on any given issue you can guess with 90% accuracy what their editorials will say). Corporations have their place in the public discourse, it is impossible to get them out of it (especially when they own many mass media institutions.

My argument is not to end corporate speech, but to limit their ability to spend financially in elections. Spending unlimited sums of money is not simply "participating in the public debate," it is using wealth to influence elected officials and the electoral scene in ways which average voters can never do. The negative effects produced by corporate spending in elections merit far greater attention than you are giving it. You are correct that you cannot make the political debate one-sided (which I never endorsed), however you certainly can make strides to limit the financial influence. Corporations frequently use their wealth as a tool to influence the opinion of elected officials. I would argue that under status quo corporations already have excess influence in Washington, and that is the primary concern of my opposition to the Supreme Court ruling. I don't think they should be denied the right to speech, but delimiting corporate financial influence in elections is not a move towards speech, its a move for quid pro quo financial influence, and that should be of serious concern to anyone.

[JPS]

I believe corporations should be allowed to participate in the public debate and show their side of the story, they are certainly part of the polity and I don't disagree with you there. However, I think they achieve this more often than not: they have incredibly lobbying influence on K Street

As I made clear in my reply to Mike, I view lobbying as a very different kind of activity than actual participation in the public forum. Encouraging corporations to move away from lobbying and into actual public debate by, you know, actually allowing them on to the field would be a positive change for both corporations and for the broader public, in my view.

delimiting corporate financial influence in elections is not a move towards speech, its a move for quid pro quo financial influence, and that should be of serious concern to anyone.

And as I have repeatedly explained, I think the charges of "massive influence" from being allowed to spend money in elections are hyperbolic, inattentive to substantial mitigating factors like diminishing returns and populist backlash, and unwarranted by actual experience. I think an accurate evaluation of the issues surrounding corporate personhood and corporate free speech requires a sober and careful analysis of its consequences rather than a dramatic one.

[JPS]

Ending the constitutional "citizen" priveleges and focusing on financial right

Corporate personhood already does not include "citizen" privileges (e.g. voting). Understanding the distinction between "person" rights and "citizen" rights is absolutely fundamental to being able to have this discussion in an informed way.

My argument is not to end corporate speech, but to limit their ability to spend financially in elections.

The question is how to enact a "limit" that does not inevitably collapse into content restrictions and further limitations being imposed whenever the "wrong side" happens to prevail in a particular political contest. Once the principle of unrestrained participation is disavowed, it becomes impossible to draw a stable line protecting any participation. This isn't exactly a slippery slope arguing (e.g. any restriction leads to total restriction), but rather an objection to the sacrificing of the only possible permanent protective principle out of concern for the kind of more gradual and episodic evolution that could result from it.

My bottom line is that corporations are affected by government regulations and policies as well as by social attitudes that underlie political attitudes. As such, they NEED to participate in politics with more than just behind-the-scenes lobbying efforts. Corporations need to be part of the OPEN political and policy debate process, both in pursuit of their own interests and the collective interests of society. Unless we embrace the idea that corporate interests are always contrary to broader societal interests (a view that, while implicit in some of your rhetoric, I don't think you would openly defend), corporate voices in the political and electoral debates are essential, and not just as limited to lobbying activities.

[Mike_Cal'06]

Jason: thanks. I think you've added a lot of clarity and I want to follow up on some narrower points that I think are interesting (I'll leave the full argument to Hajeer).

First, you argue that money doesn't buy that much influence and discuss the Romney campaign. I think this is part right and part wrong- at least in Presidential elections, money has taken on a gatekeeping function. Candidates like Huckabee and Richardson weren't able to keep up with the frontrunners because they didn't have either personal wealth (Romney, Edwards) or enough attention to have successful fundraising (Obama, Clinton, McCain). So I disagree with you that money is not extremely important. Where I disagree with a lot of critics of Citizens United is my belief in "who controls the uniqueness," that is to say, big money already plays this role and I don't really think it will get much worse. I think I would be happy to see a more comprehensive campaign finance regime, but given pre-Austin decisions that protected the right to spend money on your own campaign, I don't see this as reasonably within reach.

Second, I think the legally coherent alternative is Austin v. Michigan Chamber. It was the law for nearly 20 years and it's written by Thurgood Marshall so you know it is awesome (yes, I see your Volokh and raise you Thurgood!). I'm sure there are other reconceptualizations, but this one is an easy place to start.

Third, you argue that corporations have their views poorly represented because they can't participate in open process, there is a dominance of populist anti-corporate views, and this pushes corporations to get their work done on K street.

I'll start in the middle and say that your claim just doesn't reflect reality; anti-corporate populism is not driving policy. The anti-corporate sentiment in communities with strong liberal tilts or universities (Cambridge, Madison, Berkeley), but that's not reflective of the real world outside those liberal enclaves. If you look at the policy choices by the United States from the Eisenhower administration to the present, you'll see a very consistent pattern of very strong pro-corporate behavior, including toppling governments that threaten corporate interests (See, e.g., Guatemala 1954, Chile 1973), decreasing the regulatory burden (most notably under Reagan and Clinton), and decreasing the tax burden on high incomes (Kennedy, Reagan, Bush II), and substantial bailouts (Bush I, Bush II, Obama). Whether this is actually good for corporations or just good for the wealthy is something I'll return to- but it's definitely not populist.

The third point, about K street, is in tension with the idea that good ideas will counter corporate-promoted ideas. If money spent in the public sphere doesn't result in the outcomes corporations seek, they'll be right back on K street. More likely, corporate interests with even less restriction will do good polling and use focus groups to find out what policies they should promote publicly, and what policies they should obtain through back-room dealing.

So the question is whether, in reality, corporate voices are well represented. I certainly agree that the average mutual fund investor is not acting in the interest of their portfolio, but the fund manager probably is, because they will often be paid on commission. I think the real policy problem arises when policy is made that benefits the individuals who stand to make the most money from corporate interests, rather than the natural interest of the corporation as entity. I think we see this with a lot of policies, notably the continued lack of serious limitations on executive pay, the aforementioned tax cuts, etc. The problem, for me, is that I am skeptical that corporate speech will remedy this. Corporations have thrown their weight around in elections, and they don't tend to follow their financial interests as much as the political interests of their leadership. Two nearly identically situated coal companies will take divergent positions because one may be run by a reasonable person, and the other may be run by Don Blankenship. So while there may be a representation gap, I'm not buying that more free speech is going to solve that, largely because corporations are easily manipulated by their leadership.

I guess as a result I conclude that almost nothing is gained by granting corporate free speech rights. I do think there is some loss, but the greater loss is what has already happened with the rise in the "entry fee" to politics. No longer can small state governors become party nominees (B. Clinton, Dukakis) because they can sell their exemplary record to residents of the small states with early primaries and caucuses. So while Austin is a clear rule, it's also an insufficient one, and I don't know where to go from there, but it probably requires more than just limitations on corporate speech.

[JPS]

So the question is whether, in reality, corporate voices are well represented.

I don't agree that that is the key question at all. Using that framing, it is simply too easy to rely on nothing more than sweeping stereotypes about shadowy corporate conspiracies that control everything to short-circuit the entire debate. If they have ANY political influence, anti-corporation activists will believe it to be too much and will try to limit it. That's why protections need to be fundamental rather than incidental.

I think the real question then is what forms corporate participation in politics should take in order to ensure adequate protections of all free speech interests rather than a subjective and politically skewed impressionistic judgment of whether they are "well-represented" in the minds of those who oppose them. I read you (though not AK) as agreeing at least that corporations have a legitimate and independently distinguishable set of interests that constitute a valid political stake. You just think that K Street gives them all that is required or legitimate, if not more.

Even if I agreed with the claim that K Street influence is as overwhelmingly powerful as you assume with your rather selective reading of political history (e.g. you forget that Huckabee outlasted Romney and your own examples of Clinton, Obama, and McCain tend to show that other factors are far more powerful than corporate support in determining electoral outcomes), I don't agree that saying a group has one channel for political advocacy means that they have no legitimate claim on the more fundamental channel of direct public advocacy. Lobbyists are subject to rules and restrictions that make K Street an unreliable channel, especially in the increasingly anti-corporate political environment (I do not agree with your assertion that anti-corporate populist vendettas are limited solely to liberal enclaves). Without the underlying protection of a legal principle granting them free speech rights, the ability of corporations to make their political case is subject at any time to cancellation by a populist mob garbed in the trappings of self-righteousness but, from what I have seen, frankly ignorant of even the most basic practical realities about the economic and political role of corporations. I think that is too thin a reed, both normatively and pragmatically.

For you to focus on the Eisenhower administration while ignoring the anti-corporate campaign being promoted and led by no less than the President of the United States right now is, to say the least, a bit too selective. And to say that politicians and activists should be allowed to be unconstrained in demonizing corporations while corporations should be muzzled by law from any and all public-domain response is blatant skewing of the political contest. We can see the beginnings of where this leads with the demands -- led by the President and other powerful political interests and activist groups -- for government control of how much executives are allowed to be paid, how much junior and middle executives are allowed to receive in bonuses, the type of autos that General Motors will be allowed to manufacture, etc, etc, etc. More than ONLY the anti-corporate point of view should be highlighted in such debates. The intention AND effect of those objecting to Citizens United appears to be the total suppression of dissent, nothing less. I realize this sounds stark, but that's exactly how I read it.

You also ignore my point about the superiority of shunting corporate political advocacy into the more open public sphere and away from K Street. If corporations have the right to open political advocacy, at least some of them will choose it as an alternative to the lobbyist route that is subject to greater and more widespread populist backlash. That would be comparatively advantageous to the stunted and ignorant one-sided non-debate that has prevailed for the last 20 years.

[Mike_Cal'06]

I'll get to the substance of your post later but I didn't ignore the argument you restate in your last paragraph. I noted how my fourth paragraph (beginning with the word "Third") is responsive to that point. Although I didn't label this clearly, I think the argument I make in the next paragraph, that corporate political goals are driven by personalities not corporate interests, also is somewhat responsive- the individuals who run those companies are free to engage in public discourse- consider Don Blankenship of Massey Energy- an outspoken climate change and T. Boone Pickens of, well, all the gas he owns, who is trying to support expanding renewable resources. They both engage the public route, but still play the K Street game as well.

I'll respond to your other arguments later, but I don't think the responses will lead to much enlightenment- I think it comes from a different worldview. I just don't believe that populist anti-corporate sentiment actually does much to the fundamentals of policymaking. I don't believe that restrictions on K Street Lobbyists can change the basic arrangement of power, nor do I believe Congress will ever enact meaningful restrictions on such lobbying. I don't think any President since Truman (and Truman is arguable, maybe since FDR) has been truly interested in consolidating power in government to an extent that is at all threatening to the permanence of corporate power in American politics (that's why I say from Eisenhower to present). I certainly do not believe President Obama is leading an anti-corporate campaign (to say he is leading anything is perhaps an overstatement) and regulatory steps like a financial product safety commission, while perhaps a nuisance to some corporations, do little to upset the underlying power arrangement.

[JPS]

I think that at the point that the President of the United States begins to personally dictate who can be chair of the GM board of directors and begins to propose government micromanagement of compensation at nearly all of the largest banks and financial trading firms, it is difficult to see it as anything other than a massive expansion of government control over corporations founded on a fundamentally anti-corporation set of presumptions. And this is even leaving aside the incessant drumbeat of demonization against insurance companies that has formed the foundation of the health care reform movement for the past year.

To contend that such methods should be paired with a prohibition on the corporations responding publicly is to ask to enact a permanent partisan skew in the content of arguments that are made available to the public, regardless of whether those arguments might be made available to Congressmen from K Street lobbyists.

But, at a minimum, I am appreciative that you are willing to eschew the breathless hyperbole and emotional hysteria that often characterizes the anti-corporate side, as in the title of this thread. Your arguments are respectable, even though I disagree with them.

[zachf]

Health insurance companies are not being demonized, the truth about their business practices has been exposed. You can keep your head in the sand but that doesn't change the fact that our health insurance model is bankrupting people and denying them treatment.

There has been a massive expansion of government power, the actions taken has saved those banks and companies from collapsing and taking our post-industrial economy with it. A real anti-corporate agenda would have included BUYING OUT the company instead of taking a shitty deal in return. Instead, Wall Street is running the Obama administration while willfully ignorant people try to paint him as a socialist.

[Mike_Cal'06]

Jason:

A couple things from your last post I find interesting. First, I realize that a lot of people hold your view that President Obama is motivated by a profoundly anti-corporate ideology, yet many other people hold views similar to my perceptions- that this administration has been largely inactive and timid regarding taking on corporate power.

I think the first difference might be difference in focus- the "disillusioned supporters" like me were looking for a degree of permanence from the policies of this President, and that means legislative accomplishments. In my estimation, this President has, so far, passed only one piece of legislation that will be seen as significant to historians, and that is the stimulus bill, which by its very definition lacks permanence.

Opponents, out of power, are worried about current uses of power (just as opponents of President Bush were worried about torture not because it could become a permanent US policy, but because it was something bad going on while Bush was president). And here the influence under the TARP and auto-industry bailouts confirms a lot of suspicions.

That said, I wonder what would be the more pro-corporate action the administration could have taken? Certainly, at the inception of TARP, it was a pro-corporate policy. Absent TARP, some of the country's largest corporations would have gone the way of Lehman Brothers. The same is true for the automakers- absent bailout, they may not even exist today. So the underlying policies are pro-corporate.

So then the question is, once government is invested in these companies, how should it manage that stake in those companies? At this decision point, the administration has not taken the most pro-corporate option (which would be to permit compensation and high personnel decisions to be made internally) but the most anti-corporate routes have not been taken either. One can easily imagine much more stringent control over corporations, the placement of partisan political officials in charge of companies (if, for example, Citigroup, AIG, and GM were to be run by Howard Dean, Al Gore, and Dennis Kucinich). Rather, the President has directed some degree of management, but not placed the major bailed out companies in orbit of the Democratic National Committee. Of course this middle ground pleases nobody. In particular, the anti-corporate critics are unhappy because the corporate system they fault for creating the crisis remains in place, now with government support (albeit with some cuts to bonuses and a few unique and already rich individuals losing their jobs).

I'm not sure where this leads us, but I think that takes a pretty good shot at explaining the difference in our perceptions.

Second, your critique of the "shrill" nature of other critics may not apply to me, but I do believe a lot of their observations about corporate power are correct. Perhaps the difference is that I understand uniqueness; not only do I believe corporate power is pervasive and dangerous, but I also believe that this power is already near its potential maximum- that is, I don't believe that free spending can do much more harm. To me, Citizens United is more damaging because it cuts off future avenues for substantial campaign finance reform, but it would have taken a Citizens United sized shift in the other direction by the Court to go where I would like to see campaign finance regulation.

Third, I'm surprised that you, Jason, are happy with the Court reaching Constitutional questions not at issue. The fact that the Court only addresses the questions necessary to resolve a case AND only the questions presented by the parties is an important limitation on the extent and the pace of judicial influence. Even the "activist" Warren Court declined to revisit Plessey v. Ferguson until they felt it was absolutely necessary, ruling several times regarding higher education before they recognized in Brown I that Plessey had to be at issue (and took another several years before stating that Plessey lost effect in all areas of law, not just education). Citizens United ignored this limitation in blatant fashion- asking parties for re-briefing in a new term on an issue not raised by either of the parties. In other cases, the Court declined to evaluate issues not raised by parties (See Coeur Alaska, where the Court indicated skepticism toward EPA's interpretation of a statute that permitted the destruction of a lake in Alaska, but declined to rule on the agency's construction of the statute because no parties raised that issue). The reason that Citizens United is the worst court decision for some time is not the First Amendment issue, which I think is bad but is unsurprising, but rather the willingness of the Court to engage in a final transformation into a policymaking body that can choose its own agenda, rather than having an agenda chose by petitioners and grants of certiorari.

[JPS]

Third, I'm surprised that you, Jason, are happy with the Court reaching Constitutional questions not at issue.

I'm not. If you look all the way to the beginning, this was what I conceded was probably the best criticism of the Citizen's United decision.

Even so, I do not agree that it makes it the "Worst SCOTUS Decision of the Decade" or "Hard to Top". I would have a much easier time conceding the legitimacy of the anti-corporation critique if it were not constantly framed in such extremist, demonizing, absolutist, no-dissent-tolerated rhetoric.

As for the level of corporate power, I do not agree that it is "near maximum" because I think those who contend that are frankly cherry-picking the data, highlighting elements that support their case while ignoring elements that cut the other way. Corporate influence on K Street is strong, but hardly overwhelming, as evidenced by the fact that anti-corporate populists keep getting to use corporations as dehumanized and demonized whipping boys. If corporate power was at "maximum", it is hard to believe that there would remain any restrictions on corporations, but I think even you would concede that there are restrictions, those restrictions are growing (apart from Citizens United), and that those restrictions are likely to continue to grow given the continued power of populist anti-corporate politics promoted by the Democrats who control all the institutional levers of political power in DC these days.

But I think our most fundamental disagreement is how much political influence corporations should be allowed to have. Because of the demonizing and often outright hateful tone and content of its rhetoric, I read the anti-corporation position as being absolutist -- corporations should have no political rights or influence and should in fact be actively looted by the government for the purpose of setting right past wrongs and for the purpose of funding progressive social policy priorities. If there is a difference between this absolutist position and the actual goals of the anti-corporation movement, I honestly cannot see any sign of it. My reaction to the anti-corporation movement is thus guided by this perception that I am frankly dealing with people who aren't entirely rational in the substance of the goals they are seeking.

I would prefer that the argument take place somewhere closer to the middle, where BOTH the advantages and the problems with corporate political influence are allowed equally into the calculus of policymaking. Corporations exist because they are an efficient means of concentrating resources and coordinating economic activities. Given the centrality of their role in modern economies, corporations have an imperative to be politically active, especially in reaction to blind and absolutist anti-corporate populism that seems exacerbated by a widespread ignorance of basic economics. Given that their critics (1) have no restrictions on their anti-corporation advocacy AND (2) are because of their ignorance promoting policy changes that would devastate economic growth AND (3) are seeking intermediary policy changes that would muzzle any and all efforts by corporations to defend themselves politically, I tend to perceive the Citizens United decision as inherently defensive of vitally important principles notwithstanding its defects.

[JPS]

Health insurance companies are not being demonized, the truth about their business practices has been exposed.

Those who are prejudiced against any given group ALWAYS claim that their statements are not prejudice at all, but are rather only "exposing the truth".

I do not contest the claim that some of the business practices of some insurance companies should be legitimately criticized and altered through legislation.

I do contend that the sweeping and demonizing tone of the rhetoric directed against ALL insurance companies has been unjustified and has also been extreme enough to warrant the label "prejudice", if not even "bigotry". When such rhetoric becomes the basis for policymaking, it is extremely dangerous in both normative and practical terms.

[Mr. Notlob]

Jason, some questions-

1. What is the legal rationale for giving corporations free speech rights?

2. What entities, other than individual humans, deserve to have rights under our legal system?

3. Do you oppose any limitations on corporate speech? If not, what limitations should be in place and how do those limitations not violate right rights to speech?

4. What rights do corporations and similar organizations get other than free speech? For what reason would they get some rights and not others?

[JPS]

1. Personhood, as distinguished from citizenship -- the claim that certain entities have legal rights under the Constitution for both normative and practical reasons.

2. I would say that all collectivities formed in response to a felt collective need should have the same rights. Yes, I would also overturn restrictions on political advocacy by not-for-profit and non-profit groups.

3. I would endorse only the same requirements imposed on collective speech from other types of entities, such as unions. Most importantly, I would endorse the restriction that corporations may not engage in political speech except to the degree they are authorized to do so by their shareholders using funds specifically set-aside and authorized for that purpose (a similar restriction that I would endorse regarding political advocacy by unions).

4. The most important distinction between types of rights are those given to / usable by "citizens" versus those given to / usable by "persons". Thus, rights like free expression, free association, and the presumption of innocence attach to "persons" while those like voting attach only to "citizens". (This point is, by the way, the area in which I am willing to concede that my argument is weakest and most open to challenge/compromise. I would caveat that, however, by reiterating that it can only be challenged by full articulation of a SPECIFIC alternative, and not just a hand-wavy blanket presumption that (1) an alternative framework would be articulated by Congress and (2) that alternative should be presumed to be perfect.)

[Mr. Notlob]

Jason-

So if I advocated for the same restrictions that apply to corporate political speech to apply to all political speech, would that be acceptable?

Which rights apply to citizens and which to persons? How do we determine if a right should be limited to citizens only or apply to all persons?

[Mike_Cal'06]

Here- I found the point of disagreement. Jason highlights "felt collective need" as a basis for expression. Here are my problems with this:

The Constitution does not protect feelings. This is an unpopular position in some lefty circles but it's just right. The role of courts, especially the Supreme Court, is not to give rights because people feel they have a need, but because they ACTUALLY have a need. This leads to my further analysis, that a) corporations only have self-interest, no conscience interest, b) they can have their self-interest advanced by their stakeholders as individuals, and c) they won't advance their self-interest even if permitted to do so.

If I understand correctly, you agree with (a), disagree with (b) because of aggregation problems, and disagree with (c) for some other reason (I'm too lazy to go find it). You also think the anti-corporate movements are particularly potent, making speech important, but I don't think that matters if you buy (b) and (c).

Lastly, I think my "maximum of power" argument was not clear. I do not mean to say there is no hypothetical greater amount of power that corporations could have. Rather, i think it is quite impractical go get much more power than corporate interests have now, because there is a diminishing return on investment. Spending the next dollar on politics gets you less than the last dollar, and I think that corporate expenditures via bundling, individual expenditures, and other avenues are pretty close to making that marginal dollar worthless right now. Perhaps it would be better phrased to say that not all influence over government is for sale, but all that was for sale has already been purchased.

[JPS]

Originally Posted by Mr. Notlob

Jason-

So if I advocated for the same restrictions that apply to corporate political speech to apply to all political speech, would that be acceptable?

Only if those restrictions were minimal and in accord with a liberal interpretation of the First Amendment. Restrictions on political speech are suspect on their face, no matter how consistently applied across different types of speakers.

Which rights apply to citizens and which to persons? How do we determine if a right should be limited to citizens only or apply to all persons?

Well, that's the job of the Supreme Court to derive the delimitations of those distinctions. I merely noted that the distinction exists and that I find the Court's delimitation as reflected in Citizens United to be acceptable, if not ideal.

[JPS]

Mike,

"Felt" modified "collective", not "need". I think when a collectivity feels itself to BE a collective (in the political sense), then the NEED to express that unique set of political interests follows intrinsically and cannot be barred without offending the core purposes that the First Amendment exists in the first place. To say that particular types of collectivities (corporations, unions, non-profit groups) are to be singled out for exclusion from free expression rights is to put a thumb on the scales of political debate in a manner that will inevitably impoverish that debate and do so in a particularly biased and arbitrary manner.

[JPS]

You also think the anti-corporate movements are particularly potent

I think my main point is that free speech rights should not vary in accordance with a subjective assessment of how "potent" the opposing side is or isn't. Otherwise, there is too much incentive to minimize the alleged political influence of one's allies in order to completely cancel the political influence of one's adversaries. Such gamesmanship should never be the determinant of foundational rights like the right to political speech.

[JPS]

Spending the next dollar on politics gets you less than the last dollar

That being the case, it is difficult to see how the apocalyptic predictions of the critics of Citizens United could ever come to pass. If corporate power is already so powerful as to maximize what is achievable under the law of diminishing returns, it is difficult to see how allowing corporations to spend more will change anything. As I recall, that was my point about diminishing returns all along.

[Mike_Cal'06]

Sorry about the misunderstanding of collective. I just wanted to point out that the Constitution does not protect your feelings.

Perhaps there's some need for reform of how corporations operate (for example, authorizing shareholder suits against political actions by corporations when not properly authorized/wasteful of corporate resources). I'll admit that's not my expertise but there's a mention of it by Prof. Tribe in his post on SOCTUSblog about Citizens United.

[Mr. Notlob]

Originally Posted by JPS

Well, that's the job of the Supreme Court to derive the delimitations of those distinctions. I merely noted that the distinction exists and that I find the Court's delimitation as reflected in Citizens United to be acceptable, if not ideal.

You cant pass the buck on this question. Which rights are reserved for citizens and which rights are extended to persons generally is a question at the heart of this controversy. Until you provide a reason to think that speech is one of those rights that apply to persons as opposed to citizens I don't see a reason to believe that is the case. We should suspend judgment about whether speech is a right that can be had by persons for the time being. Whatever reason you give will rely upon appeal to whatever mechanism you use to draw a distinction between citizen and person rights unless you fall back on a "I know it when I see it" argument. Your argument relies on the premise that free speech is a right that is had by persons. If this is not the case then it is not a violation of the first amendment to limit corporate speech.

[zachf]

Originally Posted by JPS

Those who are prejudiced against any given group ALWAYS claim that their statements are not prejudice at all, but are rather only "exposing the truth".

I do contend that the sweeping and demonizing tone of the rhetoric directed against ALL insurance companies has been unjustified and has also been extreme enough to warrant the label "prejudice", if not even "bigotry". When such rhetoric becomes the basis for policymaking, it is extremely dangerous in both normative and practical terms.

Your first statement is pretty descriptive of your reaction to anyone that doesn't agree with you. I don't know what you think qualifies as demonizing, dehumanization, prejudice or even bigotry. But my instincts tell me your willful ignorance and lack of experience with such issues means you aren't qualified to make such claims.

More importantly, I am now persuaded by you that corporations have been oppressed by anti-corporate prejudice and bigotry. I really didn't know that you could dehumanize something that isn't human. Fortunately, such rhetoric is not the basis of policy-making. However, demonizing people who oppose such measures or are negatively affected by large corporations has in fact become a pillar of law enforcement post 9/11. I'm so glad I live in a democracy.... In our plutocratic-corpratocracy labels like illegal alien become a defining feature of the health care reform debate. If only they were considered people under our law like corporations are under the 14th amendment.

[JPS]

Perhaps there's some need for reform of how corporations operate (for example, authorizing shareholder suits against political actions by corporations when not properly authorized/wasteful of corporate resources). I'll admit that's not my expertise but there's a mention of it by Prof. Tribe in his post on SOCTUSblog about Citizens United.

I think that empowering shareholders to be a check on use of corporate resources for political advocacy would be a much more fruitful and legally coherent way to restrain excessive corporate political influence than would be trying to designate corporations (and other collective entities) for direct restriction of political speech. The difference lies in using individual empowerment instead of government coercion as the mechanism.

[JPS]

Originally Posted by Mr. Notlob

You cant pass the buck on this question. Which rights are reserved for citizens and which rights are extended to persons generally is a question at the heart of this controversy. Until you provide a reason to think that speech is one of those rights that apply to persons as opposed to citizens I don't see a reason to believe that is the case. We should suspend judgment about whether speech is a right that can be had by persons for the time being. Whatever reason you give will rely upon appeal to whatever mechanism you use to draw a distinction between citizen and person rights unless you fall back on a "I know it when I see it" argument. Your argument relies on the premise that free speech is a right that is had by persons. If this is not the case then it is not a violation of the first amendment to limit corporate speech.

I would say that we have to look to the underlying purpose for the right and ask whether that purpose is best served by restricting the right to citizens or casting it more broadly to persons.

Since the purpose of free political speech is to empower all those affected by public policy to have a voice in shaping public policy, I would say it must be cast more broadly for the simple reason that citizens are not the only persons directly affected (and even intentionally targeted) by public policy.

[Arabian Knight]

Long weekend, go Saints.

Originally Posted by JPS

As I made clear in my reply to Mike, I view lobbying as a very different kind of activity than actual participation in the public forum. Encouraging corporations to move away from lobbying and into actual public debate by, you know, actually allowing them on to the field would be a positive change for both corporations and for the broader public, in my view.

They are never barred from being on the field, I gave you many more examples besides lobbying by which corporations influence public policy and discourse. You keep saying you are opposed to eliminating corporations from public discourse, but no one is advocating that.

I am advocating limiting their ability to spend financially in elections, just like private citizens, non-profits, and any other charter out there. All these groups are perfectly capable of influencing public discourse despite these limitations on them. You never explain how limiting financial contributions is equivalent to removing someone from the debate. I think it is unwarranted and unsupported by the evidence.

Originally Posted by JPS

And as I have repeatedly explained, I think the charges of "massive influence" from being allowed to spend money in elections are hyperbolic, inattentive to substantial mitigating factors like diminishing returns and populist backlash, and unwarranted by actual experience. I think an accurate evaluation of the issues surrounding corporate personhood and corporate free speech requires a sober and careful analysis of its consequences rather than a dramatic one.

I've given you a perfectly clear and careful analysis that is not in the least dramatic. I've included it for your convenience:

Originally Posted by Arabian Knight

No one is claiming that corporations just got superpowers. Only that their influence is significantly strengthened. Having money does not mean everyone believes your message, but it was good enough to get Ross Perot 18.9% of the vote. More than any other third party had achieved since the Bull Moose Party of 1912, and that was led by a former president, so was hardly even a third party.

Thats my point: money has an effect, and elections are decided in the margins. No election is decided purely by money, but the influence is there and very noticeable. Let me put the argument statistically to give an example:

Lets say corporate donations give you a 2% edge.

If a candidate has a 5 point lead, then the corporate edge won't help you win. But if its a close race, then that money can make the difference that you need.

No one is claiming that money is the magical end-all be-all, so stop treating the argument as such. What we are saying is that money has an effect, and that effect was increased.


As for your arguments on corporations that are hated, I'd give you the same response. Money is not magic, but it gives a large edge. The missteps of Exxon and Enron resulted in a massive blow to public opinion (although Exxon has largely recovered from that by now), that doesn't mean money doesn't have influence, it simply means corporations can screw it up in other ways. Sure, you can defraud people of billions, sure, you can cause one of the worst industrial accidents in years, you can do a lot of things that will counteract your financial spending. However, financial spending still allows you to do things you would not be able to otherwise. Enron had significant access to K street and even met privately with Bush in crafting the U.S. energy policy. They still got to be hated because of their defrauding, but their wealth gave them greater access, and greater opportunity to fuck up.

Companies still need to play it smart, but wealth gives them more tools. And thats the problem here.

Originally Posted by Arabian Knight

Not only that, even if we are going to pretend, and this would be an absolutely terrible argument but I'll entertain it: that money given has no effect on a candidates policies, then you still face the problem that the flows of money narrow the field.

Candidates unable to secure large sums of money needed for their campaign treasury simply aren't seen as competitive, don't get party backing, and don't get the necessary exposure to reach voters. Money is access, and corporations have large influence in this access.

Does that mean I think that money is always the end-all factor in an election or a candidate's policies? No, and thank god for that, thats why there are some wonderful elected officials and campaigns that are succesful despite the financial disadvantage, but the system overwhelmingly favors the wealthier candidates.

So no, I don't think voters are drowned out, that the 'voices of the disenfranchised' have been dealt a mortal blow, that democracy will die tomorrow. But I think a serious damage has been done to it, and it will effect our elections and legal process for decades to come, for the entirety of my prime and well into my late adulthood. And it concerns me.

This ruling will make it a lot harder for candidates to resist corporate donations, and it will affect policies. Corporations already have excess sway in government. Honestly:

I dare anyone to claim that corporations don't have enough lobbying influence in K street under status quo.

After today's ruling, their excess influence is heightened. Ordinary citizens can still pool money, but the competition is now heavier, there are larger flows of money and campaigns will have to adapt by raising more money, meaning ordinary citizens have to donate more to be effective, or donate in larger groups.

This has a simple effect:

Many candidates from before will still have enough money afterwards.

Many candidates from before will also still have too little money after this ruling.

But a group of candidates who might have been financially competitive before this ruling will no longer be financially competitive because of the need for funds, and they will have to either take corporate donations or risk loss.


This ruling penalizes candidates who refuse corporate donations out of principle. They were already at a disadvantage, but now that disadvantage is much greater.

As for your mitigating factor:

Diminishing returns in donations is only an effect when you are already significantly ahead of your opponent in terms of your campaign treasury. However, it is still an arms raise. So if you're already ahead of your candidate by $50 million, you don't need to keep raising to win the race. but if your competition raises $50M of his/her own (or close), you need to keep raising. Therefore, diminishing returns establishes the limit on the benefit of raising money, but competition between candidates keeps raising the limits, and the studies on electoral campaigns show that the cost of campaigns have increased exponentially over the past two decades, necessitating greater amounts of corporate fundraising for candidates and marginalizing candidates who traditionally refuse corporate donations.

Populist backlash is also rarely as common as you state. Firstly, when both candidate's take money in from corporations, populist backlash becomes meaningless as they have no choices by which to really express their dislike. Both their options are making the same error, and when both candidate's do the same thing, populist backlash loses relevance in the outcome of elections.

These mitigating factors don't disprove my thesis.

[Arabian Knight]

Originally Posted by JPS

Corporate personhood already does not include "citizen" privileges (e.g. voting). Understanding the distinction between "person" rights and "citizen" rights is absolutely fundamental to being able to have this discussion in an informed way.

Fine, 'person.'

Originally Posted by JPS

The question is how to enact a "limit" that does not inevitably collapse into content restrictions and further limitations being imposed whenever the "wrong side" happens to prevail in a particular political contest. Once the principle of unrestrained participation is disavowed, it becomes impossible to draw a stable line protecting any participation. This isn't exactly a slippery slope arguing (e.g. any restriction leads to total restriction), but rather an objection to the sacrificing of the only possible permanent protective principle out of concern for the kind of more gradual and episodic evolution that could result from it.

I understand your argument, I don't fully disagree, but I want to make three points. Firstly, setting simple finite limits that apply to all function quite well in allowing all the other avenues of discourse to continue, but minimize the externality of large coffers affecting the policies of candidates. Secondly, participation is never eliminated. There are many avenues to discourse, we are simply seeking to minimize the avenue that involves using large sums of money to affect change, which carries many inherent risks and problems. Thirdly, if the principle of denying any limits is disavowed, it eventually becomes impossible to protect common citizens from the demands of wealthy donors. You face the problems on both ends of the extremes, and I would overwhelmingly prefer a society in which strict limits on financial contributions apply to everyone than one where private donations to elected officials are unlimited.

My argument here is not that these groups are necessarily always in opposition to one another, but rather that a fair democracy cannot operate when one group wields disproportionate influence in the electoral process.

Originally Posted by JPS

My bottom line is that corporations are affected by government regulations and policies as well as by social attitudes that underlie political attitudes. As such, they NEED to participate in politics with more than just behind-the-scenes lobbying efforts. Corporations need to be part of the OPEN political and policy debate process, both in pursuit of their own interests and the collective interests of society.

Could you please explain the mechanism by which reducing corporate donations to elected officials to a level equal with regular citizens excludes them from the public discourse? I hear this claim repeated over and over and I find myself no closer to hearing a warrant for the claim.

Originally Posted by JPS

Unless we embrace the idea that corporate interests are always contrary to broader societal interests (a view that, while implicit in some of your rhetoric, I don't think you would openly defend), corporate voices in the political and electoral debates are essential, and not just as limited to lobbying activities.

Its a view that is actually explicitly denied by my rhetoric and argumentation on numerous occasions. I've already explained how corporations have different goals and desires than one another, how the disproportionate influence of one corporation on K street compared to another perverts the market and hurts competition, as well as how my criticism applies to every group, not just corporations.

But again, I still see no warrant for the claim that reducing the amount that people are allowed to donate to elected officials somehow excludes them from the public discourse.

[Arabian Knight]

Originally Posted by JPS

But, at a minimum, I am appreciative that you are willing to eschew the breathless hyperbole and emotional hysteria that often characterizes the anti-corporate side, as in the title of this thread.

There's no hyperbole. This decade is young and this is hands down the worst decision SCOTUS has made so far this decade. I don't see anyone topping it in the near future, but if they do, I'll be sure to update the thread title to reflect the change.

[Arabian Knight]

Originally Posted by zachf

I think that mandating the internalization of environmental destruction and reparations for human rights violations would go a long way towards deterring corporations from engaging in malevolent behavior. Their effect on the democratic process would be meaningless in a world in which they are still accountable through their charter. I would say the source of corporate meddling in the democratic process is to create an environment of impunity. Without that incentive, I don't see corruption occurring. At the very least, corporate ad spending could be traced through disclosure laws that would allow us to tie a politician to specific corporations. This would allow enable us to have another point in organizing against corporate power.

It could go a long way, but it won't solve all the problems we're discussing. If your argument is that this one policy, properly enacted, is a substitute for reform on corporate personhood or campaign finance issues, then I would heavily disagree. If your argument is that it has its own merits and should be instituted alongside other policies, then I would agree.

But in either case I have a couple caveats:

Firstly, it is very difficult to internalize human rights violations because of the difficulty of proving the violation, showing the degree of culpability shared by the corporation, calculating the 'cost' that the company should pay, and enforcing the policy consistently. This same problem actually applies in all scenarios. Its a step forward, but making corporations internalize the costs of certain externalities works best in cases where the externalities are easily measurable, a cost can easily be assigned, and the fine can be enforced, in situations where the violation has to be proved in each instance it becomes hard to near impossible to enforce the policy, and in cases where the nature of the violations rapidly shifts, it becomes difficult to calculate proper punitive damages.

I like the policies, but they have their limits. They are only one tool out of many that regulationists would use.

[Mr. Notlob]

Originally Posted by JPS

I would say that we have to look to the underlying purpose for the right and ask whether that purpose is best served by restricting the right to citizens or casting it more broadly to persons.

Since the purpose of free political speech is to empower all those affected by public policy to have a voice in shaping public policy, I would say it must be cast more broadly for the simple reason that citizens are not the only persons directly affected (and even intentionally targeted) by public policy.

First, claiming that the purpose of free political speech is to empower all those affected by public policy is too broad a claim. Does that mean that everyone in the world affected by US policy gets free speech rights here? Should Chinese steel companies get a say in US elections because our policies have an affect on their bottom line?

Second, talking about "the purpose of rights" makes no sense. Rights, if they are properly called rights, have no purpose. To talk about the purpose of rights means that we only have rights in a derivative sense, we only have them because they are practically useful for achieving some ends. Thats problematic for you because it allows opponents of corporate free speech to make their arguments about all the terrible policies corporations have supported and all the awesome ones they oppose and argue that corporate free speech rights empirically fail to achieve whatever purpose it is they are supposed to achieve.

The right to political free speech is part of a more general right to have a certain amount of say over the things that happen to us. My worry is that I am not sure that corporations are the sort of entity that is capable of having rights. If they do have rights at all, its only a sort of pseudo-right that they have because their constituent members have rights. The point is that whatever it is that corporations have, it isn't a right Because they do not have full blown free speech rights, it should be easier to limit how they spend their money in elections.

[Mike_Cal'06]

One thing to add: Corporations should not be permitted to donate to campaigns. I believe Citizens United did not reach this, but from the logic of the decision it seems to follow (contrary to the rule under Austin, which prohibited such donations).

The reason this really matters is that we have individual contribution limits (upheld because of the potential for quid pro quo corruption- a compelling state interest; it doesn't apply to funding your own campaign because you cannot buy your own vote- presumably you already own it) and the ability to create numerous corporations solely owned by an individual could effectively destroy this restriction. It seems to me that if you think the individual maximum is a valid and good policy, you should agree that corporations should not be permitted to donate to candidates.