Tuesday, February 02, 2010

Footnote to Everybody's talkin', Parts 1 and 3

Updated Some updates and observations about the Citizens United decision and my two-part response to Glenn Greenwald's defense of it.

It's true, as he says, that the issue of corporate personhood was not directly addressed in the dissent. But, I've learned, it's flatly untrue that it was never raised. An editorial in The Nation says that
[d]issenting Justice Ruth Bader Ginsburg spoke as a strict constructionist when she declared during oral hearings on the case that "a corporation, after all, is not endowed by its creator with inalienable rights." ...

At the hearing on Citizens United, Justice Sonia Sotomayor suggested that instead of expanding the supposed First Amendment rights of corporations, the justices should reconsider the misguided Santa Clara ruling, which "gave birth to corporations as persons." Added Sotomayor, "There could be an argument made that that was the Court's error to start with."
What's more, the dissent written by Justice John Paul Stevens has this to say:
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. ...

[C]orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established. (Opinion of Stevens, pp. 75-76; pp. 162-163 of the above-linked .pdf file.) (Emphasis added.)
Related to that and contrary to what Greenwald would have you believe, the dissent did not hinge solely on a claim of "compelling state interest." Rather, Stevens spent a good deal of time arguing that because corporations are not people it is entirely Constitutional to make distinctions based on that. That is, corporations can be treated differently from "natural persons," including having their speech regulated more closely, precisely because they are not persons. In fact, he says so in the very first paragraph of his consideration of the merits of the arguments advanced by the majority, where he said that the majority
claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation.
That claim, he wrote, "is wrong." (Opinion of Stevens, p. 23; page 110 of the .pdf file.) Further on, he wrote:
Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. ...

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. ... [I]t would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech. (Opinion of Stevens, pp. 32-34; pp. 119-121 of the .pdf.) (Emphasis in original.)
Note here that while I agree with Stevens, my immediate point is more that Greenwald's contention that the minority embraced the notion of corporate personhood as fully and eagerly as the majority and that the issue of a difference between corporations and persons really didn't figure in the debate is flatly false.

And I clearly do agree with Stevens: In that last line, he anticipated one of my own questions, which was:
Could a US corporation that's been around for 35 years run for president? How, once you say that corporations have the same rights as individuals, could you say no?
It also anticipated the move by Murray Hill Incorporated (a PR outfit that does campaigns for labor and progressive groups) to embrace the full meaning of the decision and run for Congress. (Thanks to Digby for the link.)

It also appears that another two of my contentions have gotten confirmation, one historical and one contemporaneous.

First, I argued very strongly that "corporations do not actually exist in the physical world" and that
[w]e are entirely within our rights and authorities as a free people to define the rights, protections, and authorities of corporations in whatever way we choose, including imposing whatever limitations we care to place on them.
It turns out that in a case in 1819, Chief Justice John Marshall wrote this for the Court:
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”
Of course, that was before corporations, just like the Velveteen Rabbit, became "real" (although the love in this case was that of money and power). Still, for that very reason, it could be argued that it's more likely to represent the intentions of the framers vis-à-vis corporations and the political process.

And second, I insisted that the danger of Citizens United is
its existence as precedent and the longer-term impact of the philosophy contained in it, one under which putting any restrictions on money in politics becomes an untenable limit on free speech.
Well, guess what (again, link via Digby):
Clearly operating on the premise that the Supreme Court last week changed the entire legal landscape for money in politics[, SCOTUS blog reports,] the D.C. Circuit Court appeared on Wednesday[, January 27,] to be leaning strongly toward giving even more freedom to campaign groups that are set up to operate independently of candidates and parties. From the opening moment of the 65-minute hearing, most of the nine judges on the en banc Court treated the Supreme Court’s ruling in Citizens United v. Federal Election Commission as the beginning, not the end, of expansion of those freedoms.
That didn't take long, did it?

And we're off and running. Some for the hills and some, specifically those who continue to struggle to dismiss the importance of the decision, just off at the mouth.

Updated with a Footnote: Some years ago, someone tried to reject an argument I was advancing by claiming that it was similar to something Ronald Reagan had said. I replied that it just proved that even Ronald Reagan couldn't be wrong all the time.

Apparently, I can say the same of the teabaggers. TPMMuckraker brings the news:
Some Tea Partiers are expressing vocal opposition to the Supreme Court's recent ruling striking down the ban on corporate political spending - a stance that puts them at odds with the Republican Party and the broader conservative movement. ...

Tea Partiers - especially the rank-and-file activists, as opposed to the movement leaders - often embrace a more populist, anti-corporate position than does the Republican Party, or the conservative movement that under-girds it.
Back in the '90s, these were Perot voters, the people I called "the ag'in'ers - whatever it is, they're ag'in it." They haven't gone away. They've just gotten angrier and more frustrated - but it's an anger still, unhappily, manipulated and directed for the most part against the most obvious target (government) and away from the real target (the power of concentrated wealth). But that doesn't mean they don't know that other target is there.


tim said...

What lies in the shadow of the statue?

LarryE said...

He that will save us all.

tim said...

Nice. You definitely watch. :o)
Mind blowing friggin opener tonight, huh? Didn't disappoint.
Did you catch it?

LarryE said...


Actually, I don't watch. I had no idea what you were talking about. But I do know how to use "THE GOOGLE."


I'll have to catch some background and see if I get caught up in it like I have a few shows (Stargate springs to mind) - but with all the comments I hear about it being so confusing and all, I can't help but suspect the writers are making it up as they go along. :-)

tim said...

My wife and I watched every episode of Stargate SG-1 as well. Great sci-fi. Lots of violence, a little thought provoking, and cheesy as hell. Atlantis, we couldn't get into as much thought.
But you're right. From what I have heard from the writers of LOST in interviews, they had some general idea where they wanted the show to go from the beginning. But they were actually sort of making some of it up as they went along up through season 3 where they felt they were running out of juice. So they decided that rather than let the show drag out until fans lost interest, they hooked up a deal with ABC to put an end date on it. That way they could promise viewers a conclusion and insure that it's not just a complete clusterfuck string-a-long. So this current season that started last night is the final season. I recommend the crap out of it. It's so much fun. You have to start with season 1 though. Besides, it's much better to watch on DVD because it's maddening to have to wait a whole week after the unbelievable cliff hangers they stick you with.


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