Citizens United v. Federal Election Commission

[KoihimeNakamura]

That's nonsense. But hey, if oversimplification of all concepts sounds appealing..

 

[Praktik]

In Scalia's opinion:

But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf.

Interesting thoughts from Scalia, I just can't help but think that the common cause of a corporation and a political party are very different.

In a political party you're there cause you agree with certain basic political tenets.

In a company you're there to earn money and help the company earn money, not for political reasons.

So while the top level of a company may be aligned, who's to say that the "common cause" of the company is to vote Democrat? Maybe the CEO thinks that a certain policy is better for the company, but people in middle management or the CFO or shareholders actually like the opposite candidate.

Nonetheless, resources they are involved in generating are spent on one political candidate or party or issue.

What you end up with are people toiling away and having the fruits of that labour diverted to politicians and policies they oppose.

 

[applecorped]

Nonetheless, resources they are involved in generating are spent on one political candidate or party or issue.

What you end up with are people toiling away and having the fruits of that labour diverted to politicians and policies they oppose.

Unions?

 

[Darat]

Aren't contributions to a union voluntary?

 

[KoihimeNakamura]

Some places, being part of a union is mandatory.

 

[WildCat]

That's nonsense. But hey, if oversimplification of all concepts sounds appealing..

Explain how it's "nonsense".

 

[WildCat]

Interesting thoughts from Scalia, I just can't help but think that the common cause of a corporation and a political party are very different.

In a political party you're there cause you agree with certain basic political tenets.

In a company you're there to earn money and help the company earn money, not for political reasons.

So while the top level of a company may be aligned, who's to say that the "common cause" of the company is to vote Democrat? Maybe the CEO thinks that a certain policy is better for the company, but people in middle management or the CFO or shareholders actually like the opposite candidate.

Nonetheless, resources they are involved in generating are spent on one political candidate or party or issue.

What you end up with are people toiling away and having the fruits of that labour diverted to politicians and policies they oppose.

So you think everyone who works for the New York Times agrees with their political endorsements? Does the NYT not exist to make money? MSNBC? Fox News? CBS? CNN? etc etc.

Also, you are arguing that free speech rights are lost by forming a corporation.

 

[Meadmaker]

Aren't contributions to a union voluntary?

In the United States, laws vary from one state to another. In many states, if a union represents the workers in a factory or other facility, all employeesin the plant must either be members of the union, or must pay a fee to the union equal to the membership dues. Those dues might be hundreds of dollars per year, or more.

 

[GStan]

So you think everyone who works for the New York Times agrees with their political endorsements? Does the NYT not exist to make money? MSNBC? Fox News? CBS? CNN? etc etc.

Also, you are arguing that free speech rights are lost by forming a corporation.

Your right about Fox News, they're just trying to make money. But the rest of those entities are only interested in spreading truth to the masses.

 

[Praktik]

So you think everyone who works for the New York Times agrees with their political endorsements? Does the NYT not exist to make money? MSNBC? Fox News? CBS? CNN? etc etc.

Also, you are arguing that free speech rights are lost by forming a corporation.

No of course they're not. Nothing is stopping the individuals in the corporation from contributing to politicians, PACs or an entity started to advocate for a specific point of view.

Someone else mentioned unions, another example might be taxes.

I'm simply highlighting that the same dynamic is at work when corporations making chemicals let's say, or providing IT services, spend corporate resources on advocating for a certain politician or policy: namely, that people's work and efforts may be going to things they oppose.

Personally, I think the example of the Weekly Standard or the NYT are special cases. Unions also offer services like lawyers to get your job back if you are fired unfairly, and counselling and argue to get YOU more money and benefits.

On taxes though, I figured that this observation of mine would resonate with some conservatives who observe the same dynamic at work with taxes.

 

[Brown]

As I have said before, it is pretty clear that some corporations should have First Amendment rights. The First Amendment protects freedom of the press, and virtually every major news organization is controlled by a corporation (although many of them do not actually use a "press" as part of their news distribution). Expressly at issue in this case, of course, was freedom of expression, not freedom of the press.

As some commentators have pointed out, the concern is not that corporations have First Amendment rights. The concern is that the corporations might have the same rights as natural individuals without having the limitations or responsibilities of the natural individuals.

I was going to write something yesterday, but did not have the time, and I have since learned that Keith Olbermann has offered similar remarks. So if I get lumped in with Olbermann, so be it; but what I have to say is not drawn from his Commentary.

When the Dred Scott decision was issued, Chief Justice Taney may have sincerely thought that he was "settling" some very stubborn issues. But the decision had numerous unintended (and very likely unforeseen) consequences. Yesterday's decision, like Dred Scott, has got "unintended consequences" written all over it. Suddenly, the world of "Rollerball" (1975), in which nations are supplanted by corporations, becomes a very real possibility.

It used to be said that if the Communists won a free election in the US and thereby attained power, they would abolish free elections, because free elections are hostile to communism (and vice versa). One wonders whether corporations having virtually unlimited rights of free speech may result in the eventual curtailment of free speech, since corporate interests are generally hostile to free expression.

 

[Ziggurat]

Yesterday's decision, like Dred Scott, has got "unintended consequences" written all over it.

Really? The way I see it, the campaign finance laws that started this suit have already demonstrated "unintended consequences".

Suddenly, the world of "Rollerball" (1975), in which nations are supplanted by corporations, becomes a very real possibility.

Yeah, I'm just not seein' it.

It used to be said that if the Communists won a free election in the US and thereby attained power, they would abolish free elections, because free elections are hostile to communism (and vice versa). One wonders whether corporations having virtually unlimited rights of free speech may result in the eventual curtailment of free speech, since corporate interests are generally hostile to free expression.

So in order to defend free speech, we must... not accept free speech? I don't think the logic works out on this one. Nor do I think corporations are capable of influencing public opinion or the courts enough to do anything of the sort, no matter how much campaigning they do. People really like free speech and will chafe rather quickly under any attempts to impose serious restraints on it, especially ones designed to protect corporations.

In other words, I don't think the threat is at all credible.

 

[Random]

So in order to defend free speech, we must... not accept free speech? I don't think the logic works out on this one. Nor do I think corporations are capable of influencing public opinion or the courts enough to do anything of the sort, no matter how much campaigning they do. People really like free speech and will chafe rather quickly under any attempts to impose serious restraints on it, especially ones designed to protect corporations.

In other words, I don't think the threat is at all credible.

But there won’t be any restriction of free speech, that’s the problem. The entire cost of the 2008 elections was a little over $5 billion. That is Presidential, Senate, and House election campaigns for Republicans, Democrats, and everyone else. $5 Billion.

Exxon Mobile alone had over $40 billion in profits in 2008. For 15 percent of Exxon’s profits, they can outspend everyone combined. They can buy up all the ad time on TV and radio. When ad rates rise, smaller groups will be even more marginalized.

No one is going to stop you from standing on your soapbox and shouting your agenda, but if you are doing it in the middle of Times Square on New Years Eve good luck getting anyone’s attention.

 

[Ziggurat]

But there won’t be any restriction of free speech, that’s the problem.

Yeah, um... I really don't see that as a problem.

The entire cost of the 2008 elections was a little over $5 billion. That is Presidential, Senate, and House election campaigns for Republicans, Democrats, and everyone else. $5 Billion.

Yes, and that happened prior to this court ruling. Which means that the campaign finance laws which were struck down were clearly not solving the problem (if it is a problem).

Exxon Mobile alone had over $40 billion in profits in 2008. For 15 percent of Exxon’s profits, they can outspend everyone combined. They can buy up all the ad time on TV and radio. When ad rates rise, smaller groups will be even more marginalized.

Well, no. First off, no chance in hell Exxon would ever do that (can you say "shareholder lawsuit"?). Second, all the ad time? Sorry, even Exxon doesn't have that kind of money. And third, it's not add rates which marginalize small groups. Campaign finance law compliance is a much more serious issue for small groups than add rates are - it's complicated, it takes time and expertise (ie, money) to comply with, the requirements for compliance don't scale well at the low end, and the penalties for noncompliance are serious. If you want to lower the barrier, make campaign finance laws easy to comply with. Which, in practice, means make them loose.

 

[Praktik]

Campaign finance law compliance is a much more serious issue for small groups than add rates are - it's complicated, it takes time and expertise (ie, money) to comply with, the requirements for compliance don't scale well at the low end, and the penalties for noncompliance are serious. If you want to lower the barrier, make campaign finance laws easy to comply with. Which, in practice, means make them loose.

Perhaps the issue is similar to the regulation of finance: its just overly complex and been added to ad-hoc over the years, so you end up with a labrynthine set of rules that are not only difficult to understand but require a certain amount of specialized knowledge to navigate. Those with deeper pockets can afford that expertise and then use the very complexity of the regulations against the spirit of the regulations.

If we just has simpler rules, like say, you can't be a hedge fund and a bank, or for campaign finance, very simple codes - compliance will be easier, cheaper and the end result more effective.

 

[Brown]

Yeah, I'm just not seein' it ["Rollerball'].

Good thing. The movie stunk. The remake was worse.

People have made a lot of really good points about this case.

What bothers me about this case (apart from the blatant hypocrisy of the five members of the majority, with one possible exception) is that there is widespread concern about governmental corruption. With this case, there is now almost no way to stop it. Federal legislation can't stop it. State action can't stop it (unless ALL of the states agreed, and it is a virtual certainty that they won't). Even amending the US Constitution (probably)cannot stop it.

To the extent that Justice Kennedy is under the impression that the vast amounts of cash that will be brought to bear will not be corrupting, one must question his grasp of reality.

What can stop this corruption? An informed and educated electorate that refuses to let itself be swayed by propaganda could stop it. I'm not holding my breath.

Another Supreme Court opinion that modifies what was said might stop it. This would either entail a change in the Court's personnel, or a contrary case in which the facts are similar but the speaker is of the opposite political stripe (this assumes a result-oriented Court), or a case in which the injustice or corruption is shocking.

There's a line in Michael Crichton's novel, "Rising Sun," that comes to mind. The concern is not necessarily that public officials are going to be bought. The concern is that they are going to be influenced. The concern is that this influence will benefit special interests to the detriment of the people as a whole. The concern is that access to public officials is a limited commodity, and the special interest groups will have disproportionate access.

 

[Praktik]

There's a line in Michael Crichton's novel, "Rising Sun," that comes to mind. The concern is not necessarily that public officials are going to be bought. The concern is that they are going to be influenced. The concern is that this influence will benefit special interests to the detriment of the people as a whole. The concern is that access to public officials is a limited commodity, and the special interest groups will have disproportionate access.

Indeed, but perhaps we should change the "will have"s to "have more"s, since all those "will have"s are already happening and have been for some time.

Anyway, good point!

 

[INRM]

Wildcat,

Actually they're not allowed to give any money at all to campaigns.

What about AIPAC?

In Scalia's opinion:

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”

So he's for giving a company the same rights as individuals when it comes to lobbying?


INRM

 

[steve s]

In Scalia's opinion:
...It is the speech of many individual Americans, who have associated in a common cause,...

Don't churches qualify as a group of individuals who have associated in a common cause? How long until they're allowed to run ads supporting a candidate?

ETA: And if corporations are allowed to spend unlimited amounts, why should individuals be limited to how much they can donate to a candidate? It won't be long before someone challenges that, and all limits on spending will be revoked.

Steve S.

 

[Dunstan]

Don't churches qualify as a group of individuals who have associated in a common cause? How long until they're allowed to run ads supporting a candidate?

Well, churches are allowed to run ads supporting a candidate. They just risk losing their tax exemption if they do.

ETA: And if corporations are allowed to spend unlimited amounts, why should individuals be limited to how much they can donate to a candidate? It won't be long before someone challenges that, and all limits on spending will be revoked.

It's possible. A lot of people find the whole "donations vs. spending" distinction to be arbitrary. I'm not one of them.

One other thing I'd like to point out: while there are plenty of reasons to disagree with the decision (I think any time 4 justices dissent, it's safe to say it's a close/hard case with good arguments on both sides), some of the "parade of horribles" being trotted out here and elsewhere are a little far-fetched.

Even before this decision, there was nothing stopping Evil, Inc. or whoever from spending massive amounts of money on election advertising. It's just that (1) they had to limit themselves to "issue ads" rather than specfically saying "vote for candidate X; and (2) they had to comply with the various reporting and administrative headaches of forming a PAC.

But (1) was a fairly lame distinction -- it was rarely hard to figure out whose "side" an ad was on. And (2) is no big obstacle if you're already willing to dump millions or billions on politicking, as people seem to fear will happen now.

The obvious response to this is: if it's not a big deal, then why was the law an undue infringement of the First Amendment? But my point is that it wasn't a big handicap to the (possibly hypothetical) Big Evil Corporation that is willing to blow huge chunks of its treasury to influence elections. It would be an obstacle to smaller organizations. If some JREFers wanted to form Skeptics Against Quackery and run some ads against woo-promoter Sen. Tom Harkin of Iowa, or Citizens for Science and take on some creationists in their state legislature, these would be pretty meaningful restrictions.