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January 22, 2010

Comments

I think there is ample precedent for distinguishing between non-U.S. persons and non-U.S. controlled entities in the campaign finance laws, but I haven't read the case so maybe it obliterates such distinctions.

That said, even if it didn't remove the U.S./non-U.S. distinction, it wouldn't be too hard to disguise the ownership of a corporation running hundreds of paid television ads long enough to have them affect an election.

Also, what if foreign entities were just major shareholders? Is there a threshold at which point the corporation would be considered a non-US person?

Last time I looked, non-US citizens had the same free speech rights as citizens. Is Soros a US citizen? If he is, what if he wasn't?

Is Soros a US citizen?

Yes.

If he is, what if he wasn't?

Then his ability to influence campaigns should be limited.

Last time I looked, non-US citizens had the same free speech rights as citizens.

Those rights do not extend to contributing to any US federal election campaign.

Which is interesting, in light of the "money == speech" doctrine.

But still true, nonetheless.

From the FEC "quick answers" website:

Foreign nationals are prohibited from making any contributions or expenditures in connection with any election in the U.S.

Green card holders are considered to be US persons, and so can contribute.

Then his ability to influence campaigns should be limited.

Why? But if a non-citizen should have less of a right to free speech in the US, does it follow that non-citizens captured overseas while actively planning or carrying out hostile activities directed at the US have similarly limited rights? Where might we find the document delineating a non-citizen's vs. a citizen's rights? What about non-citizens legally in the US? Due process but just some free speech? Better ask A Sullivan how he feels about that.

The problem with allocating and rationing who can do and say what in a free country is that, once you accept the premise that Group A can be limited, it's not long before you can come up with a reason for limiting Group B. And so on.

But if a non-citizen should have less of a right to free speech in the US, does it follow that non-citizens captured overseas while actively planning or carrying out hostile activities directed at the US have similarly limited rights?

The basis of the person's rights in the two cases are different.

Citizens' rights are defined and guaranteed by the US Constitution.

The rights of those captured and held hors de combat while fighting the US overseas are defined in various treaties and conventions that the US is signatory to.

Per the Constitution, the latter carry all of the force and weight of US law. However, the specific rights guaranteed by each are different.

So, for example, a person captured and held overseas while fighting the US might not be allowed to contribute to a US election campaign, while still being entitled to not being beaten to death.

Hope that helps to clarify things. Although, I bet you knew all this already.

Wait, wait, wait, is McKinneyTexas a bellwether for American conservatives backing off the idea that OMG CLINTON TOOK MONEY FROM CHINESE AND AL GORE DID FUNDRAISING IN A TEMPLE? Because that's, like, received wisdom on the right about how corrupt the Clintons were.

How 'bout it, Tex? Is it OK for foreign nationals to give money to US campaigns or not? If not, why is US money "speech" but non-US money not "speech?"

What Russell said.

I'm pretty sure that the whatever the actual implications of the decision are, this is not one of them.

Nope, we're distinguishing, much as it annoys the campaign censors, between giving a politician money, and spending money to have your opinion about a politician heard.

The campaign 'reformers' want saying something bad about an incumbant to be viewed as a bribe to the challenger. That's loony. But you can understand why incumbants would like the idea.

You might wanna show your work. Even for US-owned corporations, many of their major institutional shareholders are not US citizens or companies.

"So, for example, a person captured and held overseas while fighting the US might not be allowed to contribute to a US election campaign, while still being entitled to not being beaten to death."

Or, more practically, the converse. Or, more seriously, this becomes a very critical disclosure law to pass. We have candidates saying they approve of this message, we need every corporation to have to specifically identify itself clearly.

The bigger problem, I don't know if it is addressed anywhere, is the company (I am considering starting) to run ads for corporate sponsors or individuals while identifying my corporation as the corporate citizen that has these views(and the right to express them). Then anyone can say anything as long as they pay me and I am willing too say it.

So Brett is one vote for Kim Jong-Il and Hugo Chavez being able to buy US airtime to attack candidates for US offices. I think Sebastian and McKinneyTexas are, also. Anyone else?

The campaign 'reformers' want saying something bad about an incumbant to be viewed as a bribe to the challenger. That's loony. But you can understand why incumbants would like the idea.

Yeah, corporate advertising doesn't work at all, no sir. Complete waste of money.

The problem is that "distinguishing between giving a politician money, and spending money to have your opinion about a politician heard" is a distinction without a difference when it comes to ads that purely promote or attack candidates in an election, rather than taking on specific issues. It's not about speech, but about corruption - since campaign contributions mostly go to spending on media, ads run by third parties amount to an in-kind donation to their campaign, freeing funds inside the campaign in exactly the amount that the ads cost to run.

Unfortunately trying to make it about the case that was actually before the Supreme Court is missing the point. If the ruling had been limited to that kind of thing - a documentary available on video-on-demand produced by a political non-profit - I would have had no problem whatsoever with overturning restrictions on it. That restriction amounted to a limitation on the actual availability of some speech, and I have a problem with that even when the speech in question is something I disagree with.

That's not the issue. (I think that conservatives here know that it's not the issue, but I am going to assume that you're actually arguing in good faith and try again to explain it.) The problem is that they overreached and made it legal for for-profit corporations to buy as much ad time for purely political ads as they feel like. This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption. That is what is at issue, and that is the problem with the ruling, that it did not restrict itself to the narrow question but went out and overturned longstanding, bipartisan, widely-accepted laws that had been enacted by the people's representatives to try to reduce corruption in government. This is a problem people had been trying to address for decades, and they had passed laws in doing so, and the court decided that the wishes of the people were irrelevant. That's what we have a problem with.

Well said JD.

"This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption."

Not to pick, I don't disgree with the concept, but they can only free up as much money as the campaign has so it is not an unlimited contribution in kind by that measure.

The more important point is the type of speech certainly is less restricted when the candidate doesn't have to approve, publicly, of what is said.

"This is a problem people had been trying to address for decades, and they had passed laws in doing so, and the court decided that the wishes of the people were irrelevant. That's what we have a problem with."

You have got to be kidding! Is there anyone here who has a problem with the courts ignoring the peoples wishes when it suits their cause? I think this is a problem, I agree with this statement, I agree in general and specific, I just think it takes a lot of nerve to say it on this blog and have Eric agree with it.

Wow, this great!

Nice OpIvy reference in the title, Eric. Now I'm going to have to listen to that tonight.

we need every corporation to have to specifically identify itself clearly.

As I understand it, this decision expressly obviates what you propose, Marty.

It is - to put it mildly - questionable that many even nominally *American* corporations feel any particular allegiance - in the normal sense of that word - to the US. It's neither a secret, nor anything they feel the need to be ashamed about, that they don't.

You 'conservatives' are pretty much getting what you've been wishing for for the last 30 years. You might want to recall the proverb about God and answered prayers...

I have been told that Nation States are dead. Since a nation is just a shared concept that a group of people hold for some finite period of time, the idea that they will be replaced by another concept is not out of place.

In a Google world with free flowing ideas knowing no borders, with people able to connect to the nexus anytime they want to, why is it an issue if a corporation has a data stream in the flow of information or not?

Rollerball where corporations run everything? the Matrix where we are just the information. Rome and The British Empire and America where they exist until they don't anymore because people go off and think about groups another way?

Who cares who buys campaign ads if information flows and people are free to consume it in any way they want?

I have been told that Nation States are dead.

'You've been told'? What does that mean?

1.) When politicians - most especially 'conservatives'- suddenly desist from using nationalistic demagoguery as their mainstay, I will entertain, within the context of a political discussion, the idea of the death of the nation state.

2.) Could there be any more simplistic, reductive response to this question than this: "Who cares who buys campaign ads if information flows and people are free to consume it in any way they want?'?

Even in the digital utopia you think we're either living in or approaching, money = power. It takes an extensive education, lots of native intelligence, and oceans of words to rationalize the fraudulent idea that money = speech; but 'money = power' is about as self-evident a concept as there is.

Robert Reich on the need for a shareholder protection act.

Marty,

Just so we're clear, I liked JD's comment, but jeez, I don't endorse every word.

That being said, the Supreme Court should conduct its review with some level of deference to legislative action when done with such specificity, and also with precedent.

Those are not insurmountable obstacles when a fundamental Constitutional right is at stake, but they should be given some weight nonetheless.

That's my position on this matter.

Citizens' rights are defined and guaranteed by the US Constitution.

The Constitution distinguishes between 'persons' and 'citizens.'

Non-citizens take out ads, produces movies with a political bent and advocate in the public domain for political positions all the time. Whether its Hugo Chavez or Margaret Thatcher, NARAL or Families First, everybody has the right to be heard, to say what they want, etc. That is the essence of the First Amendment and the essence of freedom.

KSM is being tried in US Courts under US law. Is this a right or a discretionary concession?

Nice OpIvy reference in the title, Eric. Now I'm going to have to listen to that tonight.

Thing is Larv, I do it to myself just about each time I pluck a song lyric for a title. I get the song stuck in my head the rest of the day almost without fail.

There are worse things than having OpIvy in your head though.

Is there anyone here who has a problem with the courts ignoring the peoples wishes when it suits their cause?

It is not a controversial principle that courts should pay a great deal of respect to the expressed wishes of the people as enacted in law.

There are times when those expressed wishes impinge on the rights enacted in the Constitution, and the job of the courts then is to disentangle that mess, doing the best they can to preserve what legitimate wishes of the people can be preserved while protecting individual rights.

It seems very apparent to me that that is not what they did in this case. Not only did they not settle the issue at any of the many narrower levels it could have been settled, but they disregarded - did not even seriously consider - all of the serious concerns about corruption that lay behind the existing body of law on corporate involvement in politics, in throwing them aside.

Now I understand that to at least some conservatives that is how they see several crucial past rulings of the Supreme Court. My opinion on them is, for a couple of reasons*, not well-informed enough to really matter, but for what it's worth I think that that view is understandable, but it seems to me that the harms to individual rights in question were sufficiently serious that the rulings in question needed to be as broad as they were.

* The fact that they happened before I was born, and that until 1999 I lived in the UK and so my experience of the US is very distant from the cultural context in which they occurred - though of course this is true of many younger American conservatives too.

Non-citizens take out ads, produces movies with a political bent and advocate in the public domain for political positions all the time. Whether its Hugo Chavez or Margaret Thatcher, NARAL or Families First, everybody has the right to be heard, to say what they want, etc. That is the essence of the First Amendment and the essence of freedom.

So Hugo Chavez should, or should not, be able to give money to candidates for office in the US? A simple "yes" or "no" will suffice.

How about: if a corporation spends money on political advertising,* its limited liability gets taken away?

*yes I know this is likely hard to define, but let's assume we've all agreed for purposes of the second part.

As a non-citizen myself, I think the idea that this is a concern about speech by non-citizens is the same red herring as the idea that this is a concern about speech by corporations.

In neither case is that the concern. The concern is over political corruption through unlimited in-kind donations to political campaigns, and there is long precedent for concern about the financial influence of foreigners on US elections, as seen in the longstanding restrictions on who may contribute to a campaign. By the way, do you now think it's okay for non-resident foreigners (or foreign corporations) to contribute funds to political campaigns? If they have the rights of citizens in regards to speech, why do they not have the rights of citizens when it comes to soft-money donations?

(The restrictions on non-resident foreigners prevented me from even buying an official Obama bumper sticker during the campaign, since at the time I was not a permanent resident - I am now.)

'Last time I looked, non-US citizens had the same free speech rights as citizens.'

Those rights do not extend to contributing to any US federal election campaign.

Which is interesting, in light of the "money == speech" doctrine.

IANAL, but my understanding is that if we take the opinion at face value, this doesn't pass "Constitutional" muster, as long as we consider spending money "speech" (though I suspect it might be necessary (though IMO not meaningful) to make a distinction between contributions and direct electioneering). The central point for the majority was a (hypocritical) refusal to make a distinction between "types" of persons in terms of 1st Amendment rights. I.e., corporate "persons" and non-corporate persons. If we take that stance at face value (which we shouldn't, nor do members of the majority in other rulings), a reasonable (but ridiculous) argument could be made that if there is not an explicit Constitutional distinction made between American and non-American persons, any 1A right granted to an American person (or "person") must be granted to non-American persons (or "persons").

Admittedly, consistency is the hobgoblin of small minds, and our dear justices are certainly not burdened with small minds. No, indeed.

The Constitution distinguishes between 'persons' and 'citizens.'

That's right.

And for purposes of civil rights, 'person' is generally construed to be someone resident in the United States.

So, I agree. Non-citizen persons have every right to express themselves on any topic you like.

My issue with the court decision is that I don't think that corporations should be considered to be 'persons' for purposes of constitutionally guaranteed civil rights.

They aren't people. Lather, rinse, and repeat.

You seem intent on bringing KSM into the picture, so I'll offer my opinion.

The correct way to have handled Mohammed would have been to bring him to the US to be tried as an international terrorist under the US Code.

And query this, would it be unconstitutional for, say, Delaware to change its corporate law to prohibit any corporation organized under the laws of Delaware from spending funds to influence any election or government official?

if we take the opinion at face value, this doesn't pass "Constitutional" muster

We should expect to see some interesting court cases come up.

Oh Butters, you worry too much and appear to be stuck in a world where all information and politics is local. Tip O'Neil is dead you know. Maybe it was in the newspaper.

Money talks in your world but the Obama/Democratic/Media/Kennedy machine that had many millions lost recently.

There is no Utopia, I have been told.

"The problem is that they overreached and made it legal for for-profit corporations to buy as much ad time for purely political ads as they feel like. This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption. That is what is at issue, and that is the problem with the ruling, that it did not restrict itself to the narrow question but went out and overturned longstanding, bipartisan, widely-accepted laws that had been enacted by the people's representatives to try to reduce corruption in government. "

You keep harping on the idea that it is all about UNLIMITED funds. Is that really all you are worried about?

Because if it is, you should reread the case and notice that they specifically do not touch the contribution limits.

Phil--one more time: direct donations to a candidate are not the same as taking out an ad advocating a position identified with a candidate or even endorsing a candidate. Hugo is free to say what he wants. Hell, if it was fully disclosed, I'd be in favor of him contributing to candidates.

Russell--you can't try someone under the US Code without trying that person under the US Constitution, which includes Miranda, the 4th Amendment (Sgt., did you have a warrant when you seized that man's computer?), proof of guilt beyond a reasonable doubt and a broad array of other rights that make prosecution generally untenable.

The issue of KSM is germane because of the inherent disconnect between abridging a non-citizen's or a corporation's peacefully exercised free speech rights and granting the full panoply of rights to someone like KSM. Why does KSM get more constitutional protection than Andrew Sullivan? Is he less excitable, perhaps?

And query this, would it be unconstitutional for, say, Delaware to change its corporate law to prohibit any corporation organized under the laws of Delaware from spending funds to influence any election or government official?

Yes, under the doctrine of selective incorporation, the First Amendment, through the 14th Amendment, was made applicable to the states. Such a law clearly violates the First Amendment. Also, since Delaware corporations do business almost anywhere except Delaware, there are interstate commerce clause and jurisdictional issues as well.

Given the frequent interference of the U.S. government and corporations in the elections of other countries, there would at least be some rough justice in having our elections bought by the Saudi royal family, Hugo Chavez, the Likud Party, and the Communist Party of China (among others).

"So Brett is one vote for Kim Jong-Il and Hugo Chavez being able to buy US airtime to attack candidates for US offices."

Indeed, I am a vote for that proposition. I don't want ANYBODY'S speech censored.

"It's not about speech, but about corruption"

No, it is about speech. You want to be able to label speech you don't like "corruption", so as to have an excuse to silence it. Well, let me say this most emphatically: Stick your aspirations to be a censor where the sun don't shine. Not so long as the 1st amendment survives.

Phil--one more time: direct donations to a candidate are not the same as taking out an ad advocating a position identified with a candidate or even endorsing a candidate.

If money = speech, which is what all of this hinges on, then it most certainly is exactly the same.

The issue of KSM is germane because of the inherent disconnect between abridging a non-citizen's or a corporation's peacefully exercised free speech rights and granting the full panoply of rights to someone like KSM.

Again with this red herring. Is anyone proposing giving KSM the right to vote, or to bear arms? No? So you're talking about a population of exactly zero, here.

Heck, McKinneyTexas, you acknowledge that you're considering and money and speech to be equal on the other thread!!

And Hugo Chavez, through Lyondell-Citgo, hires Sebastian as a consultant and pays him a one time $500,000 fee. Sebastian pays his tax on the fee, keeps half and puts half into his non-profit corp. All perfectly legal. What, can't use money paid to you by a non-citizen? Well, that's an awful lot of US citizens who are going to lose their free speech rights.
You're positing that not being able to use money from certain sources is the same as prohibiting someone from speaking entirely.

Or, in short, that money is speech.

So why is giving money to television commercial production "speech," but giving money to Barack Obama not "speech?"

Can you at least come up with a consistent set of principles, here, so long as you're slagging everyone else for not doing so?

Such a tough nut to crack.

On the one hand, I love the 1st amendment and I'd rather err on the side of a broad interpretation than a narrow one.

On the other hand, I loathe the influence of money on politics. Our politicians are bought and paid for, and the vast majority serve their real constituents: the people who gave them huge sums of money

Speaking of which, I'm not really sure I buy the whole "a corporation is a person!" argument. Of course, the Supreme Court's opinion > my opinion, so I'm SOL for the time being.

Russell--you can't try someone under the US Code without trying that person under the US Constitution, which includes Miranda, the 4th Amendment (Sgt., did you have a warrant when you seized that man's computer?), proof of guilt beyond a reasonable doubt and a broad array of other rights that make prosecution generally untenable.

Well, there are a lot of terrorists in US jails. They got there somehow.

But KSM is not the hill I'm gonna die on today. Whatever floats your boat.

You want to be able to label speech you don't like "corruption", so as to have an excuse to silence it.

No, I really don't want to "silence" anything. I want elections to be free, fair, and for the electorate to be well-informed, for the views of all relevant parties to be heard, and for corruption to be minimized. Corruption is the exchange of money or other things of value (like campaign ads) for special treatment by politicians. This is not some personal (or partisan) quest to suppress particular viewpoints. It is a concern that politicians are, just like everyone else, susceptible to bribery and liable to betray the public trust if bribed. That has never been a partisan concern, it is not a partisan concern here, and it is not about "silencing" anyone. Concern about corruption and laws to restrict it are as old as democracy.

There is a secondary concern, but it is secondary and much less important than the concern about corruption, and that is that airtime is limited and sold (effectively) by auction, so that bidding-up effects from one party having far more money than another can result in effective "silencing" of one message in practical terms. But that is strictly secondary.

Sebastian: "they specifically do not touch the contribution limits"

Say more please? I am not talking about direct financial contributions. I am talking about effective in-kind contributions that come as a result of letting corporations spend as much as they want on political advertising, and unless a lot of other people and me are confused, that is exactly what the ruling did.

Jacob, PACs could already spend enormous amounts on the kind of advertising that you are talking about. Any corporation that committed to influencing the political landscape already did that.

The disclosure piece of the law was untouched, so you don't get more disclosure under the PACs situation.

Basically this makes things more directly observable.

A lot of this seems like in-kind incumbent protection. The strongest effect from political advertising is in relative unknowns against incumbents. And the effect is not unlimited as Phil and Jacob seem to suggest--corporations could have spent tens of millions on ads and Kennedy still would have retained his seat until he died. The value of being the incumbent makes you almost untouchable as it is in the US. Adding more money on the incumbent side can't move 97% much worse. So we are talking about the challenging side. Right? And I'm just not so worried about the disasterous effect of potentially threatening the overwhelming reelection rate of Congressional incumbents. We can talk about the sky falling down when the reelection rate gets to something really scary like 75%.


Fallout already

http://news.yahoo.com/s/ap/20100122/ap_on_bi_ge/us_campaign_finance_ceos;_ylt=AoFNwfcL5KEzVlpClTNvyXas0NUE;_ylu=X3oDMTNvdTk0Nmw2BGFzc2V0A2FwLzIwMTAwMTIyL3VzX2NhbXBhaWduX2ZpbmFuY2VfY2VvcwRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzIEcG9zAzgEcHQDaG9tZV9jb2tlBHNlYwN5bl90b3Bfc3RvcnkEc2xrA2Nlb3N0b2NvbmdyZQ--

I would much rather hear what a corporation says directly in an ad or PR thingy than what their mouthpiece says.

Maybe the Surpremes got the free speech stuff right?

The campaign 'reformers' want saying something bad about an incumbant to be viewed as a bribe to the challenger. That's loony.

Kennedy in Caperton:

"We conclude that there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."

Loony?

Sebastian, the problem I have is that it's possible for incumbents to be corrupted just as well as challengers. When a corporation runs ads for an incumbent, that both relieves the pressure on them to raise funds and campaign, and also frees what funds their campaign has already raised for other purposes. If you have to pay for all your own TV ads you have a lot less money left over to pay your wife & kids as "campaign consultants", go on shopping sprees, stay at fancy hotels, and generally engage in all the other fun ways to smuggle money out of campaign funds.

As far as I understand it the pre-existing situation did not allow for general treasury funds (i.e. the actual corporation's money, rather than the money of people who happened to work for the corporation) to go to PACs to run political ads. Not the case?

Why does KSM get more constitutional protection than Andrew Sullivan?

Are you under the impression that Sullivan wouldn't get a trial if charged with committing a crime in the US?

mckinney, read GC III, which is law in the US, being a ratified treaty. Persons who violate the treaties (i.e., terrorists, who commit war crimes) are to be tried by the capturing power via their existing criminal or military trial structure, and to be at least given the rights of a P.O.W., or a person in the nation's military. Once you can understand that, then we can move to the next step.

McKinney: Yes, under the doctrine of selective incorporation, the First Amendment, through the 14th Amendment, was made applicable to the states.

Well, yes, I know that, though I took Constitutional law from John Yoo, he at least got that bit right (though he didn't mention whether the president could repeal selective incorporation by citing national security).

Such a law clearly violates the First Amendment.

I'm not sure you caught what I was getting at. Corporations are solely a creature of state law, they owe their very existence to it, unlike natural persons, and can only act in ways that state law permits. Now, it just so happens that most state corporate law, and especially Delaware's, permit corporations to do just about any lawful thing, including give $ to PACs, and now do whatever was previously prohibited by McCain-Feingold before it was struck down by yesterday's decision. But to the extent a state has created the corporate body from whole cloth, I'm not so sure it can't limit the ways that that body can act. Unless the decision on Thursday can be read to mean "if a state decides to fashion its laws to create a separate legal entity, whether a corporation or otherwise, then the state cannot limit that entity's ability to exercise rights under the first amendment in any way." I'll admit that I haven't read the decision, so I don't know it can be read to mean that, but I'd be curious if others thought so.

Also, since Delaware corporations do business almost anywhere except Delaware, there are interstate commerce clause and jurisdictional issues as well.

I doubt that. The corporation owes its separate legal existence, ability to own property, to sue and be sued, etc., solely to the Delaware corporate law, and other states' and the federal government's respect thereof (the former of which might be compelled by the constitution), the fact that Delaware changed its law to restrict the actions Delaware corporations can take seems to me to be just fine (there may be takings clause issues if the law applies to pre-existing corporations, but I'm not sure that would even be the case).

@Seb:
You keep harping on the idea that it is all about UNLIMITED funds. Is that really all you are worried about?

Because if it is, you should reread the case and notice that they specifically do not touch the contribution limits.

"Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures [in elections]."

Huh. Oh, wait, you moved the goalposts to contributions. My bad.

@Seb:
Jacob, PACs could already spend enormous amounts on the kind of advertising that you are talking about. Any corporation that committed to influencing the political landscape already did that.

The disclosure piece of the law was untouched, so you don't get more disclosure under the PACs situation.

Basically this makes things more directly observable.

Um, no. It doesn't. It gives corporations the option of making things more observable, but where exactly does it say they can no longer fly kites to obfuscate who's doing the electioneering?

Money talks in your world but the Obama/Democratic/Media/Kennedy machine that had many millions lost recently.

Yes, JV, Brown didn't spend *any* money in that race. Money doesn't matter in politics! Let's let all the DC pols who spend 50% of their waking hours raising money know!

BTW, did you read the entire article you cited?

[The relatively small, Democratic-leaning companies which want not to be relentlessly solicited for cash by candidates] sent the letter through Fair Elections Now, a coalition of good-government groups who hope the Supreme Court ruling will lead Congress to pass public campaign financing legislation they have long been seeking.

Silly goo-goos! Money doesn't matter in politics! Let's just let information FLOW, and people can decide what to do with it!

Assuming that congress actually passed a campaign finance law like the one the article mentions (the odds of which are about a trillion to one), in view of this SCOTUS decision and Buckley, why would pols opt for public financing even if it were available?

So, JV, did the Supremes get 'this free speech thing' right? No, because it's not about free-speech at all, it's specifically about money. Dippy libertarian pseudo-pith doesn't affect that.

Dippy libertarian pseudo-pith doesn't affect that

This would come in handy as a key on my keyboard.

Just because you have a right to free speech, doesn't mean you're allowed to take money for speaking. There are lots of things you aren't allowed to take money for, products that are illegal to sell.

So, IMO, there is no human rights problem with banning ALL political advertising, if that's what you want. Doing it selectively (forbidding only foreginers, corporations, prison inmates, or setting spending limits) is a bit more stinky, since that could help some parties and hurt others - but so what? They haven't banned gerrymandering yet.

Again: Speech is protected. The right to take payment for saying certain things, however, need not be. Regulate to your heart's content.

But to the extent a state has created the corporate body from whole cloth, I'm not so sure it can't limit the ways that that body can act.

Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment.

This would come in handy as a key on my keyboard.

viva short cuts Eric!

Glenn Greenwald apparently agrees with the Supreme Court ruling--

link

"So, IMO, there is no human rights problem with banning ALL political advertising, if that's what you want."

Yeah, we already knew that O.W. wasn't exactly a hotbed of ACLU style civil libertarianism.

We can talk about the sky falling down when the reelection rate gets to something really scary like 75%.

The reelection rate is a red herring.

The issue is whether, over time, Congress will be owned (more than already) by corporate interests. I think that's a very reasonable fear.

Suppose independent expenditures by oil companies, to pick a handy villain, could swing 25 House seats. Unrealistic? Exxon made $45 billion in 2008. Think they'd spend $100 million (at $4 million a seat, which is a ton) to see that legislation they don't like fails?

Is twenty-five seats not enough? There's other oil companies, and I suspect it's worth, say, $300 million to all of them put together. That's 75 seats. And it wouldn't take much of a tax break to pay for them. Probably just some technical stuff nobody much would understand would do it. So the whole thing is free.

Now, you'll say that that's a ridiculous hypothetical case. Maybe so, but where's the counterweight? What makes it ridiculous?

McKinneyTexas: But to the extent a state has created the corporate body from whole cloth, I'm not so sure it can't limit the ways that that body can act.

"Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment."

Even under the strictest regulations, corporations have always and only) been granted to the rights they required to carry on the business specified in their charter. The 1st Amendment applies *just fine*.

Ironic you specifying the laws of Delaware: that state's non-existent regulation of corporations charted in Delaware is a scandal that never breaks....

Greenwald is obtuse, as is sometimes his wont.

He begins by saying that the ramifications of the ruling don't worry him because things can't get much worse than they already are (which is questionable, IMO). Then he says that outcomes are irrelevant anyway (in which case why the preceding rationalization?).

Then there's a lawyerly refutation of the idea that 'money isn't speech' along the lines of 'would you accept a law which says that certain speech was prohibited unless you spent no money putting forth those views?'
My answer is, 'No - if congress were to pass a law saying that it was illegal to criticize congress unless you spent no money doing it, I would not only object to that, but would also be surprised if it was remotely enforceable. If congress were to pass a law like that (or like the similar others he dreamed up), we'd have bigger problems to worry about than extremely fine points in 1st amendment interpretation. Are laws like the ones Greenwald fabricates even remotely likely? He would counter (perhaps) that that isn't the point, but I think it is.

Greenwald calls himself a 1st amendment absolutist, but then clarifies that and says 'more absolutist than many'. See the problem? You can't be 'more' or 'less' absolutist. Everyone draws the line somewhere.

Note to some of my lawyer friends here: the law is a tool, invented by humans, to promote ethics and justice; it's not an end in itself, anymore than a corporation is a real person. Having an evolved Law doesn't preclude the need to use judgment. Do we have a dearth of free speech in this country? Do we have a free speech problem at all? I don't detect one.

If anything, we have a free thought problem, but that has to do with how information is shaped, mostly by people/corporations with a lot of money/power.
What's the use of free speech if what you are obliged to think about - if the frame of reference - is carefully delineated or proscribed by commercial entities (or political parties with their own national propaganda tv station) with an interest?

Greenwald is kind of a twit sometimes, and this is one of those times.

Yup. Well said JB

Gotta agree with JB. Greenwald is often (usually?) insightful and thoughtful, but that piece grated. It felt lazy and a bit hackish. Obtuse is a fine characterization..

McKinney: Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment.

I guess my main problem is that the collective, the corporation, as a whole is granted something that the natural persons making up the collective, are not: limited liability. And yet SCOTUS is giving the collective the same 1st A. rights as the natural persons and saying the privilege of limited liability cannot come with a cost.

A practical question for the lawyers here -- does this ruling take effect immediately? Like in the upcoming/ongoing health care debates?

CJ: Yes.

That's bad.

Yes the law is a tool, but you seem to be pretty much brushing by all the historical reasons this country isn't thrilled about using the government to repress speech.

"A practical question for the lawyers here -- does this ruling take effect immediately? Like in the upcoming/ongoing health care debates?"

It takes effect immediately, but so far as I can tell it wouldn't have any major effect--we aren't within 90 days of an election, and issue ads of the type you are thinking of have been allowed forever.

Seb,

The government suppresses speech all the time. Some suppressions are more thrilling than others I suppose. But really, the question is where to draw the line, and that's where the debate should be.

Argue pros and cons of treating a corporation like a human being in terms of speech - while treating it as something entirely different in a whole host of other ways.

Seb's right about the fact that its effects won't be felt until late summer.

Seb's right about the fact that its effects won't be felt until late summer.
I see. However, I suppose that congressional behavior in the near future, on healthcare for example, could be bought for use now using the coin of an expectation of reelection help next fall. A sort of deferred payback.

"The government suppresses speech all the time. "

Really? Political speech? Do you have lots of examples then?

Terroristic threats come to mind.

The focus here is on constitutional guarantees regarding free speech and its full extension to corporate entities. Is it possible this ruling could short-circuit any further discussion and/or consideration of a re-institution of the 'fairness doctrine' in radio and television talk shows?

So you're comparing issue ads with terrorist threats?

Sigh.

So you're comparing issue ads with terrorist threats?

I'm not comparing anything, just answering your question.

Regardless, what's with "issue ads?" I'm pretty sure plenty of people commenting here have already made the distinction between issue ads and campaign ads for specific candidates just before elections. Don't fuzz it all up now.

No. They are complaining about issue ads too. That is what people are talking about when they are worried about the ads about health care.

I think you may be reading the issue ads into what others are saying, Sebastian. Influencing the health-care debate doesn't necessarily mean ads about health care. It can mean ads or promises of ads for or against candidates based on how they vote on proposed health-care reforms. That's what I think people are talking about.

They could do that outside the 90 window already.

The government suppresses speech all the time.

There's a statement that ought to put your hackles up.

Unrelated: in general, the thing that I see as the most pantswettingly horrible consequence of the SCOTUS ruling is that we might have to suffer through a whole lot of commercials that we don't currently suffer through, and learn to use the "mute" button more than we already do.

And perhaps I'll have to always let my answering machine pick up calls to avoid the robocalls. But that measure is already in place. I might have to get a machine with more capacity, though.

For us Orlando residents, it would be nothing more than having a few (possibly several) other sources of things to ignore than Bob Dance "Happy New Year" commercials playing back-to-back, STILL, on every commercial break, in the last week of January.

Seriously. People might be exposed to even more incorrect material than they already are? How are they going to shoehorn that many more ads in around Olbermann and Limbaugh and Beck and Savage?

The real winners here will be the TV and radio networks. If there's going to be that much more money flowing into corporate "speech", there's going to be a bidding war for airtime.

Oh, we're also ignoring the Personal Injury Attorney "public service" commercials. I've been ignoring them so long that I forgot I was doing it.

Filters. Even people dumber than you have them.

JB intermingles law with the constitution. The constitution limits the kinds of laws that can be passed be securing fundamental rights and limiting the ability of one group to legislate away the rights of another. Eric should know this.

Slart, do you really believe that ads don't change any votes? That their only effect is to annoy people? If so, why are all the candidates and corporations so stupid as to spend money on them?

Slart, do you really believe that ads don't change any votes?

Of course I don't think that. I'm pretty sure that I didn't say anything of the sort. Ads most certainly do change votes, bidirectionally; I've discovered a rather marvellous proof that this blog is unfortunately too small to contain.

Yes the law is a tool, but you seem to be pretty much brushing by all the historical reasons this country isn't thrilled about using the government to repress speech.

I'm not brushing by anything (I was trying to be unlike Greenwald, i.e. not using 8k words for a 50 word comment). I am VERY jealous of my and everyone's First Amendment rights, and I think the default generally needs to be the least restrictive reading.

But this ruling was the grossest kind of judicial activism: SCOTUS chooses which cases to hear, and they wanted this case, and they wanted to rule very broadly, so that's what they did. They weren't remedying any crying or urgent problem. This is pure ideology, shoved down everyone's throats, since they 'have the votes'.

"So you're comparing issue ads with terrorist threats?"

I look forward to this issue ad:

Wackenhut, Brinks, Blackwater, and Under Armor (divulged to us by a really fast-talker at the tail end of the ad, except that the foursome were referred to as Citizens United Against Bombs In The Obamapants) today ran an ad on behalf Senator Jim Demint's campaign darkly warning of terrorist attacks resulting from the unionization of government airport security workers. Grainy, black and white mock footage was run showing very tall bearded (females, too) government security workers in flowing robes slipping explosives down the pants of unwary air travelers as they passed through security. Images of Osama Bin Laden flashed in the background, as a cracker overvoice repeats the name "Obama" in a vaguely Muslim drone.

In other news, if I'm a person, and a corporation is a person, then that must mean I'm automatically incorporated without going through the paperwork. Further, if corporations are people, and zygotes are people, then capitalist competition between corporations which results in the death of people must now be considered abortion. I look forward to Randall Terry taking vengeance for the murder of all of those small business start-ups.

There was some talk the other thread about the relationship between the First and the Second Amendments. Teabaggers look at that relationship this way: "Hey, say or write whatever you like -- have at it. But if you say, as political speech, that you're going to tax me, my answer is as follows -- 'You talkin to me, you talkin to me?'"

I hope y'all don't mind my nomination to the Supreme Court.

I'm thinking that John Thullen's comment could be edited to become a great bar exam question.

"SCOTUS chooses which cases to hear, and they wanted this case, and they wanted to rule very broadly, so that's what they did."

Well they wouldn't have had a case to choose if the government weren't so broadly using its power to censor core political speech. Even Phil doesn't try to defend the actual use of government power in the case at hand.

And first amendment cases traditionally are not drawn narrowly--precisely because the court knows that forcing people to litigate their speech produces a chilling effect on speech. Hell, we knew this was unconstitutional when Congress passed it.

It is interesting that so many people here want to invoke the alleged hypocrisy of a broad ruling without even taking a moment to look at their own judicial philosophy.

*Allegedly* modern liberal jurisprudence is about jealously and broadly protecting essential rights.

*Allegedly* first amendment rights were so darn important and content based restrictions were so darn difficult that to protect the core of political speech Justices like Brennan just gave up entirely on policing most of obscenity.

*Allegedly* liberals understood that content based speech litigation is pernicious to speech much much further than the speech being litigated.

But I'n not even seeing these issue addressed here. Barely in passing do we see any consideration whatsoever of these allegedly core liberal legal principles. And when linked to Greenwald, who actually bothered addressing such things, he is dismissed as a twit without substantive comment on his legal content by Johnnybutter, Eric Martin and Nombrilisme Vide.

If you think this case reveals some sort of hypocrisy in general legal thinking, perhaps you might want to look closer.

I've already linked this comment section for future discussion in my favorites. But maybe this is just your initial reaction--and more considered things are to come. ;)

Eric should know this.

Eric does know this. Your point?

The Constitution protects free speech, yet this country has alwas operated under the notion that there can be limits placed on that free speech by and through laws passed, and that such limitations are consistent with the Constitution if they meet a certain set of criteria.

That is a somewhat fluid standard/criteria, and we are arguing about whether one such limit passes muster.

And Seb, I never dismissed Greenwald, not called him a twit. Come on Seb, you can do better than to put words in peoples' mouths.

*Allegedly* modern liberal jurisprudence is about jealously and broadly protecting essential rights.

*Allegedly* first amendment rights were so darn important and content based restrictions were so darn difficult that to protect the core of political speech Justices like Brennan just gave up entirely on policing most of obscenity.

*Allegedly* liberals understood that content based speech litigation is pernicious to speech much much further than the speech being litigated.

Seb, if you don't consider a corporation a human being with Consitutional rights normally reserved to corporations, a lot of that drops away.

Eric, you "well said" without further comment to JB. Was that not Johnnybutter?

"The Constitution protects free speech, yet this country has alwas operated under the notion that there can be limits placed on that free speech by and through laws passed, and that such limitations are consistent with the Constitution if they meet a certain set of criteria."

Yeah, and one of the set of criteria was that political speech is pretty much untoucheable. You don't get to say "meet a certain set of criteria" and then just wave it off and pretend to be in the liberal-rights-jealous tradition.

"That is a somewhat fluid standard/criteria, and we are arguing about whether one such limit passes muster."

Yeah, except unless I'm missing your comments. You aren't. You just state that it is ok. I haven't seen carefully considered comments or posts from you weighing out the traditionally understood problems. I haven't seen you even do more than allude to them before waving them away.

Maybe all sorts of careful balancing is going on in your head. But I certainly can't see that if you don't bother to share it.

All I see is you amen brothering some rather dubious assertions.

Did I miss something?

Oh .. obscene corporate political advertising?

Now we're talking.

The RNC could get Janet Jackson to slip a booby during Superbowl half-time, as long as the breast in question was signed "Obama sucks!"

"Seb, if you don't consider a corporation a human being with Consitutional rights normally reserved to corporations, a lot of that drops away."

No it doesn't. Because then, unless you are far more anti-corporatist than I suspect, you still have to protect the Constitutional rights of the people who make up the corporation.

To take a more traditional problem, the Court protects the people who make up a corporation from having their assests seized by the government by imputing their ownership to the corporation.

And you don't seem to be taking very seriously the magnitude of what the government was claiming. According to the ACLU, the FEC was claiming the right to block publishing of new books mentioning candidates by name which were published during the McCain-Feingold quiet period if published by a corporation (which of course they all are).

That wasn't a proposed law. That wasn't a considered law. That is the law actually passed by Congress to protect their incumbents.

The government abuse side already fulfilled its bad hypotheticals.

Yet you brush them aside.

Eric, you "well said" without further comment to JB. Was that not Johnnybutter?

Jeebus Seb, do I have to itemize every single factoid that I agree with in a comment, every turn of phrase, and then list every instance of same that I don't agree with every time I say, "well said." I agreed with the general thrust that Greenwald had this wrong.

Yeah, and one of the set of criteria was that political speech is pretty much untoucheable. You don't get to say "meet a certain set of criteria" and then just wave it off and pretend to be in the liberal-rights-jealous tradition.

Not necessarily. There are laws about political speech that rises to the level of incitement.

Further, what is most protected is political speech by people. Are corporations people? People that own corporations are people, and the law in question didn't limit their right to speak at all. The question comes down to corporate personhood.

Despite your evasions, Sebastian, this is ONLY a free-speech issue if a corporation *IS* a person *AND* covered as such by the 14th Amendment.

As *you* allege by refusing to address the core issue here & ducking behind straw men & red herrings instead.

Yet even if your allegation were completely correct and the matter were entirely settled (neither is true), then it would follow that a corporation could have ONLY the rights that natural persons have. Otherwise, natural persons are put at a permanent and insurmountable disadvantage in relation to corporate persons. This is not only diametrically opposed to the intentions of the Framers and the first 100 years of law & precedent (in *every* state), but is also the exact opposite of the conservative view you claim to espouse. It is a radical transformation - , but there's nothing conservative about it.

It's not the Civil War you guys want to undo - it's the American Revolution itself.

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