the 28th

by russell

So, this proposal has been making the rounds on Facebook.  It consists of three parts:

1. Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
2. Guarantee the right to vote and to participate, and to have our vote and participation count.
3. Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments.

What's not to like? 

But, to me, it's unnecessarily complicated.  There are about nineteen different concepts floating around in there, which for my simple mind are about eighteen too many.

Here's my counterproposal.  It is exactly one sentence long:

• The terms 'person', 'persons', or 'people' as used in the Constitution of the United States and all of its amendments shall be considered to refer only to natural human persons

How simple is that?

Two-thirds of both houses are needed to put it into play.  I guess we could go with two-thirds of the States demanding a Constitutional Convention, but IMVHO the alternate title for that movie is "Pandora's Box".  So, two-thirds of both houses is what it would take.

I put the odds somewhere south of 'slim', with a more or less asymptotic convergence on 'none'.  But since the zeitgeist seems to be open to bold ventures, there is mine.

A fella can dream.

Comments

[Anthony Damiani]

It doesn't solve the problem. To the best of my limited understanding, the Citizens United decision doesn't hinge on corporate personhood; it hinges on a definition of speech. The phrase "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press" makes no reference to people whatsoever; religion, speech, and the press are protected regardless of their source.

Indeed, for religion and the press, it would be ludicrous to exempt organizations (ie; "you can say anything you like, but corporations can only report news that the government approves of" or: "you can believe whatever you like, but organized churches must be licensed by the state in order to preach")

[Hartmut]

I agree about the negigible chance of any of that passing.
As far as Anthony's concerns go, I see an amendment as only the first step, as the base of a legal solution. The way it is now, SCOTUS will, with its corporatist majority, annull any challenges to the status quo by lawmakers. The 1st may not say anything about persons (natural or not) but SCOTUS has interpreted it as such using
1. Money is Speech
2. Corporations are persons
------------------------------
=> corporations can buy congress and courts legally and even stay anonymous doing it.

I'd be fully open for a money =/= speech amendment too.
Also high on my list is an amendment restricting presidential pardons for crimes committed by government or on its behalf, an outright ban of blanc pardons (i.e. pardons would have to be specific and limited to crimes explicitly stated) and also making prosecution of crimes by government or on its behalf mandatory. I would go so far as to put any administration on trial at the end of its term automatically.

[Harald Korneliussen]

Right, Anthony Damiani. The problem isn't corporate personhood - Well, it is A problem, but it's not the main problem.

The main problem is that money gives you better access to political power. This has always been true, in all societies and ages, to some degree. But the degree matters. What doesn't matter is whether "political power through money" is wielded by Koch Industries or David Koch personally, it's still a threat to democracy (democracy is just another word for political equality).

In the US, and in many other countries, the few checks that were on economic power have been systematically eroded by the ones who benefit from it, in the name of free speech. It's no coincidence that Adbusters took the initiative to OWS - they've been shouting in the desert about the threat from paid speech for a long time.

What needs to be set into law and printed into the thick heads of high court judges, is that while expressing an opinion is a protected activity, taking money for it should not be.

[Murc]

This may be oversensitivity on my part, but I object to "natural human persons." What's wrong with "human persons?"

One day someone is going to succeed at cloning a human being. We already have various fertilization schemes that allow human beings who could not possibly exist using only natural methods to be born. Gene therapy is likely to eventually become widespread. Those people aren't precisely natural, but they're as human as anyone.

[von]

Bad idea.

First, as noted abvoe, the word "person" isn't in the First Amendment. Thus, your proposed amendment wouldn't fix the alleged problem that you want to fix.

Second, although I get where you and the folks behind the Facebook proposal are coming from, there would be a raft of unintended consequences from your proposal. "Persons" frequently band together into groups to make their voices heard -- activist groups, unions, nonprofit corporations and for-profit corporations (e.g., media). Wouldn't your/their proposed rule would strip these organized groups of people of their right to free speech simply because they are organized? In other words, you have a right to free speech unless and until you organize yourselves, at which point the group no longer has those free speech rights -- group speech can be prohibited.

That sounds like a pretty dangerous road to go down.

[Rob in CT]

I came to the conclusion several years ago that the argument made by von above is probably right. My immediate followup thought was "we're screwed, then."

[Snarki, child of Loki]

As others noted, "corporate personhood" is a *different* problem.

Suggestions, that don't require a constitutional amendment:

Corporations, as trustees of their shareholders property, MUST disclose to shareholders ALL political contributions, whether direct or via media support. Each shareholder may then request a REFUND of the amount spent on political contributions, in proportion to the number of shares owned. Failure to promptly refund makes the corporation to triple damages, with class-action lawsuits explicitly allowed.

Political candidates that receive donations from corporations must have that corporation name or logo PERMANENTLY TATTOOED on their body, in a size proportional to the donation. Prior to elections, candidates must have their tattoo collection AUDITED quarterly, with the audits made public.

At last, the GOP will have a reason for running a candidate that not only acts like Darth Vader, but dresses like him.

[bobbyp]

Wouldn't your/their proposed rule would strip these organized groups of people of their right to free speech simply because they are organized?

No. Unlike a corporation, your typical volunteer association is not a creature of the state (i.e., chartered).

[bobbyp]

First, as noted abvoe, the word "person" isn't in the First Amendment.

True. However, if you look closely, you will find this word used prominently in the 14th Amendment which, correct me if I'm wrong, is still part of the Constitution.

[Laura Koerbeer]

I cannot speak to the legal issues. However Russels's uggestion would have the political advantage of forcing Republican politicians to be more honest about who they represent and that would be good for our political discourse.

So I say go for it. Make the Repulbicans in Congress get on record as voting agaist the idea that people are people and corporations aren't. I'd make them vote on the the whole list Russel has up there.

[McKinneyTexas]

Von has it right. This is not a good idea. And it isn't only free speech that is at issue, it is the full range of constitutional protections that people who choose to associate together would probably like to retain. In effect, the rule of law would apply to natural persons only and not natural persons organized as publicly or privately held corporations (whether nonprofit or for profit), partnerships, limited partnerships, limited liability partnerships or limited liability companies.

Finally, pretty much any system can be gamed, absent draconian, widespread regulation and enforcement. If you don't like many of the security measures now in place for counter terrorism purposes, you will like even less the regime needed to keep people from spending their money to influence voters who vote for politicians who regulate their businesses.

There is no silver bullet solution, but if you want to impact how congress is influenced, the most expedient route is term limits. Careerism is a bipartisan blot on the body politic.

[wj]

I rather like Snarki's first suggestion.

I think the rest are way over the top. But perhaps they are just included as negotiating positions, from which we could compromise down to just the first one.

[joel hanes]

Although it is at best tangential to the Citizens United issue, I've come to believe that corporations should be offered a choice: legal personhood, or limited liability. Choose one.

(Biological persons, of course, are not accorded the privilege of limited liability)

[Ugh]

As bobbyp alludes to, the problem here isn't people banding together to advocate for one position/cause or another, but that, e.g., IBM is doing so as essentially an immortal entity entitled to accumulate wealth in perpetuity.

Von is right in that banning people from organizing to petition the government for a redress of grievances would be a bad thing. But what is not necessary to effect this sort of citizenship is the corporation (and it's various derivations, such as limited partnerships, limited liability partnerships, limited liability companies, etc.).

What allows corporations to grow so large, and certain shareholders to become so wealthy, is their limited liability and (to a lesser extent) perpetual life. If I invest $5 in Corporation X and 50 years later Corporation X commits a massive tort killing thousands of people, I'm only on the hook for my original $5 investment (in most cases), even if I've earned $1 million in dividends in those 50 years.

So, you want to limit corporate influence in politics without the ancillary effects von notes above? End the limited liability of their owners. This would also limit the influence of said owners.

Whether this would be good for the economy writ large is a separate question, but the accumulation of wealth via corporations, both inside and outside the form, and thus its/its shareholders ability to influence policy, is what permits such corporations/persons the outsized influence they seem to have in our national/state/local politics today.

What would be interesting is whether a state could strip corporations of their limited liability via statute and be consistent with the Constitution (and/or the various state versions thereof).

[Carleton Wu]

Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments.

I think this is too blunt of an instrument- there are things that are properly (er, more effectively) done at each level of government. eg I don't want US trade policy to be set at a county-by-county level. If Im understanding this proposal correctly- Im not sure what would qualify as 'legitimate' v 'illegitimate' preemption.

As for corps, I dont want to strip them of their rights wholesale, but I think there's a good argument against letting them donate to politicians or PACs etc:
1)If the money isn't buying actions or influence, then there's no advantage to bundling it as a corporation as opposed to distributing it to shareholders and giving them the corp's opinion on how it should be used
2)If the money is buying actions or influence, then that's corrosive to the political process

Of course, we all know the answer is option 2, but it's worth pointing out that even the fig leaf of option 1 doesn't afaict provide any benefit to the society that couldn't be provided by individual action.

[von]

No. Unlike a corporation, your typical volunteer association is not a creature of the state (i.e., chartered).

Really? Virtually every "volunteer association" that I know of is a creature of the state, and most are incorporated in some fashion.

What allows corporations to grow so large, and certain shareholders to become so wealthy, is their limited liability and (to a lesser extent) perpetual life.

Yes, advantages that nonprofits and volunteer groups also like to take advantage of.

Moreover, what about for-profit media corporations? Do we deprive the New York Times Company of its right to "free speech" because it makes money for its shareholders?

Look, I appreciate these concerns, put you're addressing them in the wrong way. It's one thing to argue for greater corporate disclosure, as Snarki suggests. It's quite another to propose the far-reaching changes that Russell, BobbyP and others have advocated. You're not going to like the world on day+1 of these proposals.

*I think some of those suggestions are misplaced as well, but that's a different ball of wax.

[Berial]

I thought the problem with Citizens wasn't necessarily the corporations = people part but the money = speech part.

The biggest issue seems to actually be the ability to funnel large amounts of 'ANONYMOUS speech' towards a candidate or party.

Seems a bad idea to let other countries (or anyone really) influence our polity by funneling large amounts of money into our politics while hiding behind a corporate logo.

[Sebastian]

This isn't a good idea for all the reasons outlined above, but I want to reinforce that your discomfort with Citizen's United doesn't mean that scattershot proposals are a good idea.

Do you want ANY organization to have its memberships lists examined by the state at any time without a warrant? Your proposal would allow that.

Do you want ANY organization to have its property seized by the state without even eminent domain procedures and without compensation? Your proposal would allow that.

Do you want ANY organization to have its property searched at any time without a warrant? Your proposal would allow that.

Do you want ANY organizations computer files to be open to examination by the police without a warrant? Your proposal would allow that.

Do you want the law to be able to prohibit the ACLU from petitioning the government? Your proposal would allow that.

Do you want the law to be able to prohibit the ACLU from taking out ads during non-campaign times? Your prosposal would allow that.

Essentially no constitutional right would be available on a group basis.

You're right that it is a radical proposal. But the downside doesn't even begin to compare with the upside (especially as I suspect that it won't even keep money out of politics.)

Berial "The biggest issue seems to actually be the ability to funnel large amounts of 'ANONYMOUS speech' towards a candidate or party."

That actually isn't a worry about Citizens United at all. It didn't allow for that. The disclosure requirements were upheld.

[sapient]

Reading Arizona Free Enterprise Club's Freedom Club Pac v. Bennett (a more recent opinion, from which Kagan dissented, which was based on Citizens United) makes me agree that it's the money = speech issue that is the problem. Kagan's dissent logically describes the role of money as facilitating the dissemination of speech, unlike the majority opinion that treats them as being the same thing. It seems to me that there's no reason that one person (whether individual or corporate) should be allowed to have a louder microphone than another based on wealth. Similarly, it doesn't make sense to me that one person should have greater media access than another merely based on wealth.

Trying to level the playing field so that all voices are able to be heard doesn't seem to Kagan (or me) to violate any First Amendment principles, but rather furthers them. The majority seems to believe that the right to disseminate a message broadly is as exclusive as money can buy. I don't see how that can be read from the First Amendment.

[McKinneyTexas]

To follow up on Seb's comment, which I wish I'd written, full disclosure is (1) the right thing and (2) about all we can reasonably hope for. With disclosure, people can be angry or unpersuaded, as the case may be, with who gives who how much money. What I don't much care for is the reflexive drive to limit or restrict activity in a free society. Freedom necessarily implies excess, bad outcomes, etc. It's part of it. If the balance tips too far in favor of one side, say the hyper wealthy, the risk is an eventual and unpleasant populist backlash.

[Slartibartfast]

End the limited liability of their owners. This would also limit the influence of said owners.

The entire reason for being of corporations is limited liability. End that, and you bring us all the way back to the days prior to the Dutch East India Corporation. You might argue that's a good thing, but I don't think you can argue that it would be a quite drastic change, and therefore one whose economic consequences are difficult to predict.

[McKinneyTexas]

It seems to me that there's no reason that one person (whether individual or corporate) should be allowed to have a louder microphone than another based on wealth. Similarly, it doesn't make sense to me that one person should have greater media access than another merely based on wealth.

Or a bigger house, or a nicer car or own their own newspaper. Or, that people who are really good writers and can find a publisher ought to be allowed to write on topical subjects when others, not similarly, skilled are not given equal access to publishers.

Or, that celebrities should not be allowed to use their public access to discuss their policy preferences.

And movie studios--no more films with political themes. Unless, everyone else, all 300,0000,000 us, get to make their own movies too, using the studios' resources.

But, I have a solution--we should limit all political speech to blogs and every citizen should have the right to not only comment on every blog, but to be a headliner.

And to ensure equality of access, each citizen would be limited in the time they are allowed to post and comment, because otherwise, those who do not need to work would have a disparate impact.

Please. I could have a louder microphone than my neighbor simply by forgoing other discretionary spending to take out ads in the local paper. Or, I could partner up with like minded friends and acquaintances, pool our money, and buy airtime.

In the annals of bad ideas, this is a one percenter.

[sapient]

What I don't much care for is the reflexive drive to limit or restrict activity in a free society.

There was no limitation or restriction in the Arizona public financing system that was struck down in the Arizona Free Enterprise case. The only "limitation" was to check the influence of money (to a certain degree). The wealthy could still talk and advertise. The less wealthy could compete. What was the problem? In the majority's view, it seems, the problem was that wealth didn't have as much power to overwhelm the competition as it deserved. I don't see anything about the right of the wealthy to overwhelm the less wealthy in the First Amendment.

[Berial]

What exactly are the disclosure requirements of corporations, unions, and/or PACs?

I'm asking because I honestly don't know, but I DO know, I've seen a lot of commercials being funded by 'neutral' sounding groups, that are anything but neutral. Who is that group? I don't know, and have no easy way to find out. Is it ACTUALLY a group, or is it one billionare funding some pet project?

At least with the commercials funded by 'Friends of XXX', I know what they are about. Who knows what a group called 'Citizens United', or 'Crossroads America', or 'Citizens for the Betterment of the Future of our Patriotic Children' is really about.

Would these problems even be such huge problems if the income inequality weren't so bad in this country? Where 5 billionares can get together and put more cash in a candidates corner than a thousand of his opponent's supporters could?

And McKinneyTexas another 'risk' a police state answering to a very few crushing the populist backlash.

[Slartibartfast]

I could have a louder microphone than my neighbor simply by forgoing other discretionary spending to take out ads in the local paper. Or, I could partner up with like minded friends and acquaintances, pool our money, and buy airtime.

Or you could start a blog, and through excellent writing, develop a significant readership, all without spending more than beer money.

But people with more writing talent than I (which is nearly everyone) should be required to share with the less fortunate.

Speaking of which: the words should be allowed to have very little place in the context of liberal democracy, IMO. There are things you can be constrained from doing that are overtly harmful to others, but the government is not there to micromanage your privileges. Also IMO. Give the government that power, and pretty soon the government has the power to do anything. Everything, even. Same goes for other people. There were some really good reasons for not having the US be a full democracy, and the possibility of having to subject yourself to every whim of a majority of your neighbors might point us to some drawbacks.

[Rob in CT]

So yeah, we're screwed.

[sapient]

In the annals of bad ideas, this is a one percenter.

McKinney, your reductio ad absurdum argument is silly. No one is suggesting any of the things you mentioned. There is nothing in the Constitution that requires that people who have money should have more access to the media. Less than 20 years ago, the air waves, were considered to be owned by the public. Remember "the public trust," the concept that was abolished by Reagan? And just because you want to "forego discretionary spending" to take out a political ad, doesn't mean that citizens shouldn't be able to vote to allow competing voices (who may represent those without discretionary money) to be subsidized by their tax dollars. Yes that's what the Supreme Court said wasn't allowed.

[Slartibartfast]

There is nothing in the Constitution that requires that people who have money should have more access to the media.

Also: there's nothing in the Constitution that says they shouldn't. Also not specified: how many cars they can have, how much real estate they can own, and how many college educations they can fund. And a whole raft of other things, left completely unspecified in the Constitution! What were the Founders thinking?

[russell]

All good points, here are my thoughts.

The 'groups of people' issue is a reasonable concern. So, a second sentence:

2. Groups composed solely of natural human persons, organized specifically for the purpose of engaging in activities specifically protected by the Constitution or any its amendments, will be considered to be 'people' for purposes of the above definition.

Maybe this leaves the barn door open a bit too wide -- is 'making money' a Constitutionally protected activity? -- but I'm sure the lawyers among us could find a way to craft the language to allow the ACLU and the NRA to carry on.

The 'unintended consequences' thing I basically ignore. Waking up in the morning has 'unintended consequences'.

If you want to talk about actual, specific, describable consequences that one could imagine flowing from a change like this, all good. If 'something bad might happen' is going to rule your world, you might as well stay in bed.

Do we deprive the New York Times Company of its right to "free speech" because it makes money for its shareholders?

Also a very legitimate concern.

I would say that the right to free speech ought to belong the writer and not to the publication.

We do this now (to the degree that we still do it at all) with 4th Amendment rights as regards telephone and electronic communications. They are protected not because the phone company or your ISP is protected, but because you are.

The phrase "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press" makes no reference to people whatsoever

The issue of the word 'persons' not showing up in the text of the First Amendment is interesting, but as far as I know every free speech claim by corporations or anyone else is predicated on their status as persons. If they would like to try to claim First Amendment protections based on their status as something other than persons, I suppose they are welcome to try.

Other points:

I'm not extremely concerned with large expenditures of political cash by individual people. The Kochs have a lot of green to throw around, but there are only two of them. Some kind of absolute per-annum limit on personal political contributions might be wise, but it's not the be-all and end-all as far as I'm concerned.

Human rights belong to people. Human beings. Not to anyone or anything else.

Also, for the record, I'm not in favor of eliminating limited liability. It serves a good and important purpose.

I'm not anti-corporation. I just don't think they're people.

Oops, forgot one:

I object to "natural human persons." What's wrong with "human persons?"

OK, clones too.

But no robots, AI software, or zombies.

[sapient]

Also: there's nothing in the Constitution that says they shouldn't.

Perhaps, but the Supreme Court struck down a law (passed by a legislature, representing actual citizens) that allowed candidates without as much money to have more, saying that it violated the First Amendment rights of the wealthy people. What exactly are you arguing Slartibartfast? Your comment isn't responsive to the point.

[Slartibartfast]

I'm not anti-corporation. I just don't think they're people.

This. But I think Rob's problem is that he has realized that even if corporations are people, they are comprised of people whose free speech is guaranteed by the Constitution.

Disclosure might be the only approach that doesn't result in own goal.

[Sebastian]

"Less than 20 years ago, the air waves, were considered to be owned by the public."

And why was that? Because of the limited bandwidth of tv and radio signals, and for the purpose of making it possible to use them without the radio wave interference of everyone trying to use the same frequencies at the same time. Those signals are still considered owned by the public.

What does that have to do with putting commercials on cable television, writing on the internet, or making movies about politicians you don't like?

[Berial]

Your future robotic overlords, running their AI Software to determine your doom, may just turn you into a Zombie for that.

[sapient]

What does that have to do with putting commercials on cable television, writing on the internet, or making movies about politicians you don't like?

It has to do with the fact that the airwaves are now auctioned off to the highest bidder with very little regulatory consideration about allowing air space to people who don't have money. Which means that big corporations own the media, and have almost no responsibility to share the airwaves with those who aren't solely concerned with amassing profits.

And, yes, the Internet helps to level the playing field.

[Ugh]

von: Yes, advantages that nonprofits and volunteer groups also like to take advantage of.

I'm not sure who the "owners" of nonprofits and volunteer groups are (I guess the people who control the funds), but to the extent they act as large piles of money used to influence politics, their limited liability could similarly be taken away.

Slarti: The entire reason for being of corporations is limited liability.

Well, yes, and there should be some sort of price to pay for that, like perhaps a second level of taxes and perhaps some restrictions placed on the ability to influence the democratic process.

Slarti: End that, and you bring us all the way back to the days prior to the Dutch East India Corporation. You might argue that's a good thing, but I don't think you can argue that it would be a quite drastic change, and therefore one whose economic consequences are difficult to predict.

And as I noted, the question of whether that would be economically good for the economy is separate from the political effects.

[Phil]

I object to "natural human persons." What's wrong with "human persons?"

OK, clones too.

But no robots, AI software, or zombies.

What about self-aware robots? Like, I think HAL 9000 should probably be protected, but not ENIAC.

[Countme-In]

"Do we deprive the New York Times Company of its right to "free speech" because it makes money for its shareholders?"

Probably not, but "we" will deprive the New York Times Company of its right to "free speech" because it does NOT make money for its shareholders.

"There's nothing in the Constitution ...."

I'm starting to think there actually is "nothing" in the Constitution.

[Sebastian]

"It has to do with the fact that the airwaves are now auctioned off to the highest bidder with very little regulatory consideration about allowing air space to people who don't have money."

I don't understand what you are trying to say here at all.

First, what distinction are you trying to draw with 'now'? TV and radio bands weren't available to Joe Schmo off the street in the 1970s or 1980s either. (except in pirate form, which is to say illegal use).

Second, there has never been much regulatory concern about "allowing air space to people who don't have money". The public access stations have never been a major channel of communication. They've been cult status at best.

Third, the reason they are being auctioned off now is because they really aren't that important for public communication in the sense you're talking about anymore. We don't need to waste them on TV signals when they are much better used for ubiquitous long range Wi-Fi or other similar ideas.

So I don't understand how any of this connects with your concerns re Citizens United.

[McKinneyTexas]

Groups composed solely of natural human persons, organized specifically for the purpose of engaging in activities specifically protected by the Constitution or any its amendments, will be considered to be 'people' for purposes of the above definition.

So what isn't specifically permitted is proscribed?

there should be some sort of price to pay for that, like perhaps a second level of taxes and perhaps some restrictions placed on the ability to influence the democratic process.

A real pro-growth, pro-freedom plan. I don't know what the right wing analogy is, but the previously mentioned reflexive drive to regulate and limit others' activity is especially in bloom today.

[Ugh]

Where's the "balancing" in comments this thread, like the arguments made in this one?

[Slartibartfast]

What exactly are you arguing Slartibartfast? Your comment isn't responsive to the point.

Perhaps your point could use some restating, because I quoted what I responded to, and noted where it lacked snything like substance. Speaking of which:

Perhaps, but the Supreme Court struck down a law (passed by a legislature, representing actual citizens) that allowed candidates without as much money to have more, saying that it violated the First Amendment rights of the wealthy people.

The above doesn't seem to connect with anything I wrote at all. What I said was more along the lines of the Constitution doesn't really do much at all to tell us what rights some people shouldn't have.

[Slartibartfast]

"snything"

I'll leave it up to the reader to determine authorial intent, here.

[Ugh]

Me: there should be some sort of price to pay for [corporate limited liability], like perhaps a second level of taxes and perhaps some restrictions placed on the ability to influence the democratic process.

McTx: A real pro-growth, pro-freedom plan. I don't know what the right wing analogy is, but the previously mentioned reflexive drive to regulate and limit others' activity is especially in bloom today.

Uh, but what I suggest above is what we've pretty much always had, especially as to the first (a tax on corporate profits as well as those distributed to shareholders), and until recently (and continuing in certain regards) the second (limits on corporate influence in politics).

Now all of a sudden this is a "reflexive drive to regulate and limit others' activity"??

[McKinneyTexas]

Where's the "balancing" in comments this thread, like the arguments made in this one?

In speech, we don't prefer one person's rights over another, we don't limit what one person can say by keying the quantum of speech to what another can afford. We are talking here about the liberty of adult citizens, whether acting individually or through the corporate form, to engage in speech, and specifically political speech. The abortion debate, whatever else it might be, is not a speech issue.

Now all of a sudden this is a "reflexive drive to regulate and limit others' activity"??

I took you to be proposing new taxes and new limits in exchange for maintaining the status quo. If I misread you, I withdraw my comment as it applies to you, but I leave it in general response to the search for a means of bringing those damn corporations into line. Freedom is often messy, but still the superior state of affairs.

[russell]

So what isn't specifically permitted is proscribed?

????????

What I'm calling for is for Constitutionally guaranteed rights to be accorded to human beings, and not to things that are not human beings.

What humans can do today, they would be able to do tomorrow.

Congress could, in fact, leave all of the legislation that currently allows entities that are not human beings to engage in political activity in place. In fact, there would probably be a good buck to be made, by them, in doing exactly that.

The only difference would be that they would have the option of *not* doing that, which today they do not have.

Because it has been denied them by judicial fiat, no less. Imagine that. Largely based on a peculiar reading of the word 'person' in the 14th Amendment.

So, I'm just looking for a little clarity.

We're about a million miles away from 'whatever is not permitted is proscribed'.

[McKinneyTexas]

What about self-aware robots? Like, I think HAL 9000 should probably be protected, but not ENIAC.

Well, sure.

[Carleton Wu]

What I don't much care for is the reflexive drive to limit or restrict activity in a free society. Freedom necessarily implies excess, bad outcomes, etc. It's part of it. If the balance tips too far in favor of one side, say the hyper wealthy, the risk is an eventual and unpleasant populist backlash.

This seems like a dangerous principle to embrace when we're talking about the political process itself. If we casually permit de facto bribery of public officials as a necessary 'messy' outcome of freedom, there's no guarantee that this compromised political process will continue to be free.

Also, let's not put too much faith in the pendulum. Societies can undergo radical transformations under pressure/imbalance- the risk is more than just a second FDR and an improved social safety net.

And a whole raft of other things, left completely unspecified in the Constitution! What were the Founders thinking?

That we could specify those things with laws and not have them struck down by we-are-strict-constitutionalist activist judges.

Or a bigger house, or a nicer car or own their own newspaper.

Strawman. I suspect there are things we all agree should be for sale, such as nicer cars. And things I *hope* we all agree shouldnt be for sale eg slaves, justice, the votes of the members of Congress, etc.
So, on being asked whether 'access to a bigger microphone' is one of those things, I think you can make a reasonable case that it is. But comparing to the things that IMO obviously ought to be for sale isn't constructive, any more than me claiming that paying for access to the media is equivalent to selling votes.

Speaking of which: the words should be allowed to have very little place in the context of liberal democracy, IMO.

Im not sure what this means. The phrase 'should be allowed' suggests that government protects some activities (ie allows freedom of speech etc) or prohibits others (ie doesn't allow assault). I think you're getting at something, but I don't think this conveys it clearly.
[otoh, I think this often happens when trying to create an artificial division between things that we think ought to be Ok and things we don't think ought to be Ok, to make our preferences appear less arbitrary].

[McKinneyTexas]

Russell:

Groups composed solely of natural human persons, organized specifically for the purpose of engaging in activities specifically protected by the Constitution or any its amendments, will be considered to be 'people' for purposes of the above definition.

Maybe I am misreading you, but first you would require a group to 'specifically' limit itself to 'specifically' protected constitutional activities in order to be considered within the constitution. That is, a condition precedent for exercising a specific constitutional right would be declaring that intent in advance. Then, that group would be limited in its constitutional freedom only to specifically granted constitutional rights. By implication, a group could not have a dual purpose, e.g. we intend to publish articles on tax policy and raise money for the Special Olympics--sorry, no can do.

Any group failing in either category of specificity falls outside your proposed constitutional definition of natural person (or human person or some such).

To illustrate just how problematic this would be: any association of two or more people who failed to specifically identify their intent prior to speaking on a political subject would be subject to prior restraint by the federal freaking government. Prior restraint is the nice way of saying blanket censorship.

Worse still, there are a lot of things that associations, in whatever specific corporate form, do that is not expressly authorized by the Constitution. Yet, none of these would have any constitutional standing or rights under your definition.

Indeed, what is not specifically permitted is specifically subject to proscription for any entity outside your definition.

We cannot, as a country, countenance any law, and especially not one residing in the constitution, that would allow the feds to censor anyone engaged in political speech, ever. Or to condition the exercise of a fundamental right on artificial lines of specificity. Your brush is way, way to broad.

[McKinneyTexas]

Or a bigger house, or a nicer car or own their own newspaper.

Strawman. I suspect there are things we all agree should be for sale, such as nicer cars. And things I *hope* we all agree shouldnt be for sale eg slaves, justice, the votes of the members of Congress, etc.

Not at all as to 'Strawman' and a non sequitor as to the rest. Here's what Sapient wrote at 12:33:there's no reason that one person (whether individual or corporate) should be allowed to have a louder microphone than another based on wealth. Similarly, it doesn't make sense to me that one person should have greater media access than another merely based on wealth.

A louder microphone or greater access to the media are both the product of an individual's resource allocation. The gov't has no more business rationing speech equally along economic lines than it does telling an individual how much or how little of their money they can spend on speech. And if the gov't can force speech rationing along economic lines, why not any other thing?

As for what should and should not be for sale, we are talking about buying air time or access to media, both commodities that should be available in a free society, not bribing public officials. Homes, cars, etc, as commodities, are indistinguishable from air time or newspaper space. Limiting access on account of wealth is precisely Sapient's point. And it's a bad one.

[sapient]

The gov't has no more business rationing speech equally along economic lines than it does telling an individual how much or how little of their money they can spend on speech.

No, this is really twisting the definition of "speech". Speech is one person's expression. In its purest form, without technology of any kind, it's language spoken or signed from one person directly to an audience (of one or more). Speech does not require money.

(Although the word "press" requires technology and perhaps involves money, the Supreme Court doesn't talk about "press" in Citizens United cases.)

So, really what we're talking about is the right to disseminate speech to a large audience. In terms of microphones, I don't think anyone would argue that people can't blast through neighborhoods screaming through a loud microphone - everyone is equally limited by noise ordinances, etc. Similarly, disseminating opinions through media doesn't seem any more sacrosanct if the effect is to drown out other voices. Everyone has a right to speak unabridged. People shouldn't (it seems to me) have the right to use their money to monopolize the media. That's different than speech. The case I was talking about, which no one has discussed, is the Arizona Free Enterprise Club case. In that case, no one was muzzled in the least. No one was restricted; no speech was muzzled. On the contrary, people's speech was subsidized. How is this a First Amendment violation? The only way it is a violation is if you think that freedom of speech changes by degree according to your wealth.

[Slartibartfast]

The phrase 'should be allowed' suggests that government protects some activities (ie allows freedom of speech etc) or prohibits others (ie doesn't allow assault). I think you're getting at something, but I don't think this conveys it clearly.

I think you did a much better job than I did, Carleton, but my one and only point is that the Constitution doesn't do anything nearly as specific as sapient mentions, except where it concerns activities that the government must or must not do.

to make our preferences appear less arbitrary

Yes, I agree with that. But it wasn't my phrase, and I wasn't using it to prop up my argument.

[Phil]

There is no silver bullet solution, but if you want to impact how congress is influenced, the most expedient route is term limits. Careerism is a bipartisan blot on the body politic.

I don't think the government should be in the business of telling people how long they're allowed to hold a job for. If you want someone out of office, then you and your friends can control your discretionary spending, buy a whole bunch of speech, and convince others to vote him or her out.

[McKinneyTexas]

I don't think the government should be in the business of telling people how long they're allowed to hold a job for. If you want someone out of office, then you and your friends can control your discretionary spending, buy a whole bunch of speech, and convince others to vote him or her out.

And yet, that is exactly what we do with our President. And it's not just anyone's job, it's members of congress and senators only. Incumbency is single largest indicator of re-election success. Both sides sell themselves shamelessly for the money to maintain their positions. And defeating an incumbent takes even more money.

That said, I agree that the vote ought to be a sufficient protection against careerism. Unfortunately, as it has played out, not so much.

[Sebastian]

"Speech is one person's expression. In its purest form, without technology of any kind, it's language spoken or signed from one person directly to an audience (of one or more). Speech does not require money.

(Although the word "press" requires technology and perhaps involves money, the Supreme Court doesn't talk about "press" in Citizens United cases.)"

Analytically, I don't agree that this frame is useful. Pretty much everyone shorthands "freedom of speech, or of the press" as 'freedom of speech'. But treating the shorthand as if it had some special status other than making it easier to talk without using lots of extra words seems wrong. Analytically they are almost always treated identically. Citizens United was a case about a movie broadcast over cable tv, so if you insist on making a distinction between freedom of speech and the press (a distinction which so far as I can tell isn't made very often) the case was about the press and you need to analyze it as such.

And even if we say that corporations don't 'speak' so they aren't protected by freedom of speech, they do use 'the press' so the 1st amendment would still protect them unless you don't think 'the press' covers them.

But in that case, we need to be talking about 'the press' and not 'freedom of speech', in which case you're on the wrong topic entirely, and worrying about "it's language spoken or signed from one person directly to an audience (of one or more)" is just a big distraction from the topic of whether or not groups of people should be allowed to engage in political expression.

I tend to think it isn't an interesting distinction for the most part and that whenever we talk about freedom of speech, freedom of the press is almost always included. (For example NYT v. Sullivan, or the Pentagon Papers cases are generally talked about as free speech cases while under your rubric they are clearly freedom of the press cases). But if you're firmly convinced it is an interesting distinction, you need to be talking about the right one.

[russell]

Maybe I am misreading you, but first you would require a group to 'specifically' limit itself to 'specifically' protected constitutional activities in order to be considered within the constitution.

A group of people, or a group of corporations, or a group of hot dog stand vendors, can organize themselves to do any lawful thing.

In the current world, and/or in russell's world.

Period.

The only change from current world to russell's world is that a group can only assert the *constitutionally protected right* to do whatever it is they want to do if:

(a) their membership includes only natural human persons
(b) they are organized for the purpose of doing that constitutionally protected thing

So yes, I suppose it's possible that there might be groups currently organized to support the Special Olympics that would be required to assemble under a separate charter if those same people also wanted to, frex, sponsor an advertisement for a political candidate.

But, groups like the ACLU, the NRA, etc etc etc etc etc, all good, as long as their membership is only real live people.

If you want to start a bowling league, or a quilting club, or a marching band, no such bar is in play, all that is necessary is that those activities be legal in your jurisdiction.

But if you want to assert the Constitutional right, against which no law can be passed, to engage in some activity with a bunch of other people, your organization has to be (a) made up of actual people, and (b) be organized for that purpose.

Perhaps there is a huge threat to freedom in there, but if so I don't see it.

[russell]

Actually, I'll mention one additional aspect to my modest proposal.

Since money is speech and speech is money, and since only natural human persons (including clones when they appear on the scene) can claim the right to engage in Constitutionally protected activities, then *things that are not natural humans* cannot participate through the medium of money.

Or, more properly, it would not violate the Constitution for Congress or any lesser legislature to pass a law banning the participation of non-human entities in, for example, the political process through the medium of money.

If the legislatures choose to make it lawful, they may. If not, not.

What would change is that legislatures could choose to make it not lawful.

[Slartibartfast]

I don't think the government should be in the business of telling people

There's a lot of other stuff that could also go on the end of this, one of which could very well be how much free speech they can exert. Plus endless other things, of course, among which are who they can sex with, how many people they can have sex with, and whether their lights can be incandescent or must be compact fluorescent.

[Hartmut]

Do you want ANY organization to have its memberships lists examined by the state at any time without a warrant? Your proposal would allow that.

At least with this part I have no problem. If one organizes in a legal form, the (identity of the) participants should be liable to disclosure. Not necessarily to the public but to the entity recognizing it legally. Your grannies' informal knitting circle would not be affected since it is not a legally organized entity. Once they form the Organisation of Senior Knitters (Inc/Ltd. or not) that would change.

[Ugh]

McTx: In speech, we don't prefer one person's rights over another, we don't limit what one person can say by keying the quantum of speech to what another can afford. We are talking here about the liberty of adult citizens, whether acting individually or through the corporate form, to engage in speech, and specifically political speech. The abortion debate, whatever else it might be, is not a speech issue.

The reason I brought the "balancing" point up is because that's the entirety (IIRC) of SCOTUS's reasoning in decisions upholding restrictions on campaign financing/advocacy. In that, while free speech is a core american right/value, there are other rights/values against which it must be weighed, and aren't the non-judicial branches the appropriate places to engage in such weighing (in most cases)?

McTx: I took you to be proposing new taxes and new limits in exchange for maintaining the status quo. If I misread you, I withdraw my comment as it applies to you, but I leave it in general response to the search for a means of bringing those damn corporations into line.

Upon re-reading I guess you did misread me, my apologies for not being clearer and thanks for withdrawing. On "bringing those damn corporations into line", don't we have to? As I keep hearing over and over (not necessarily here), a corporate executive's job is to maximize profits for shareholders, political process be damned.

[Carleton Wu]

A louder microphone or greater access to the media are both the product of an individual's resource allocation.... Homes, cars, etc, as commodities, are indistinguishable from air time or newspaper space.

This is argument by assertion. If you want to make the case that buying airtime for a politician in a de facto exchange for input in crafting legislation is *exactly* like buying a coke, then make that case. Obviously if everyone agreed with your last sentence here then we'd agree with your entire case- I don't agree with it, and restating it doesn't make it any more persuasive.

[Slartibartfast]

a corporate executive's job is to maximize profits for shareholders, political process be damned

Yes, but to coopt the political process for corporate gain, the executive must bend the ear of the congressman. It's not just the cash, it's what you say along with the cash. Therefore, you must spend even more cash on lobbyists to do the ear-bending.

I think that's how it works, anyway. If that's the case, I think this is a pretty decent idea:

Because much of their value to their employers comes from their prior government service, I think that the taxpayers deserve a share of the return, say in the form of a 50 percent surtax on any earnings by political appointees in excess of their prior government salaries for the first five years after they leave office.

[Ugh]

Hartmut: At least with this part I have no problem. If one organizes in a legal form, the (identity of the) participants should be liable to disclosure. Not necessarily to the public but to the entity recognizing it legally.

I can get on board with this. Part of the reason a U.S. is considered a "tax haven" by other jurisdictions is the lack of a requirement under, e.g., Delaware law to disclose the beneficial owners of an entity such as an LLC to the state, but in the meantime the state recognizes the entity as a juridical person that can, e.g., conduct business.

More broadly, maybe a common theme of my comments in this thread is that, by granting limited liability to the organizers of an entity (corporation, LP, LLP, LLC, etc.) the state has conferred a benefit on the entity's owners, and thus it should be able to should be able to impose conditions/extract concessions in exchange for this (within certain limits). The traditional condition/concession being a second level of tax imposed on the income of such entities, as most corporate-type entities* were formed to conduct business (though as von notes not all, though it seems to me that was a secondary event). Later, restrictions on political advocacy.

I mean, if we were designing corporate law/limited liability from scratch, would it be constitutionally problematic to say that in exchange for limited liability, the entity cannot engage in political advocacy? I don't think so (obviously we might disagree on what "political advocacy" means). If you want to organize based on undivided (but liable) ownership of the organization's property generally, advocate away, but if you want to limit your liability to amounts contributed/invested, not so much.

Instead, we have hundreds of years of corporate law whereby the filing of a piece of paper accords privileges with very little in return.

*Trusts seem to be a separate matter here.

[russell]

It's not just the cash, it's what you say along with the cash. Therefore, you must spend even more cash on lobbyists to do the ear-bending.

I think that's how it works, anyway.

My general impression is that the cash per se can often be fairly persuasive.

But mostly I think what the cash gets you is access. When you precede your phone call with a check, the call is more likely to be answered.

I'm not sure that that, in and of itself, is a completely bad thing. A cash contribution is a gesture of support, just like putting a sign in your yard, or making phone calls, or canvassing door to door.

Do any of those things for a candidate, and you will increase your access to the candidate.

I'd just prefer that the money thing be a privilege limited to people, acting as people, and not proxies for giant accumulations of capital.

[Ugh]

Slarti: Yes, but to coopt the political process for corporate gain, the executive must bend the ear of the congressman. It's not just the cash, it's what you say along with the cash. Therefore, you must spend even more cash on lobbyists to do the ear-bending.

IIRC, there are some estimates of a return on corporate tax lobbying in congress of $100 in reduced taxes for every lobbying dollar, on average.

As to this:

Because much of their value to their employers comes from their prior government service, I think that the taxpayers deserve a share of the return, say in the form of a 50 percent surtax on any earnings by political appointees in excess of their prior government salaries for the first five years after they leave office.

I'm pretty sure you took this from a commenter/poster here (or someone with the general political leanings of such), but, eh. It's incomplete because it's limited to political appointees (so the whole of Congress and their staff is exempt, not to mention lesser Executive Branch officials who are not appointed and yet routinely go on to earn much greater salaries in the private sector), and over broad, affecting the "good" public servant in addition to the "bad."

Maybe my experience is unique in that the relatively high-level government officials I've engaged with over the years in tax policy have all seemed to be seeking the "right" answer; as opposed to the "answer that most benefits the gov't/my future employment."

[Phil]

"And yet, that is exactly what we do with our President."

And that required a Constitutional amendment. Good luck with that?

"And it's not just anyone's job, it's members of congress and senators only"

So now you want to discriminate on the basis of job title, too? Tsk, tsk.

[Carleton Wu]

I'm not sure that that, in and of itself, is a completely bad thing. A cash contribution is a gesture of support, just like putting a sign in your yard, or making phone calls, or canvassing door to door.

I disagree, I think it's a completely bad thing. It puts the hand of the state up for the highest bidder- need a recommendation to a service academy? need an immigration issue resolved for a friend? need an earmark for a local project? There's no line that I can see between mutual back-scratching and outright sale of state goods or services.
So maybe we can't stop that, maybe volunteering for your Congressman makes it easier to get your SS issues resolved. But we should fight against it tooth and nail.

How about this: you can spend whatever you want on political advocacy, but it has to be completely anonymized before being spent. I havent thought through the implications at all, but it seems like another way to attack the money = buying influence problem wo actually prohibiting spending on speech.

[russell]

I disagree, I think it's a completely bad thing.

Actually, I think you're right, and I was wrong. I retract my prior comment.

I guess what I had in mind in terms of access was less 'do me a personal favor', and more 'listen to my thoughts on topics X Y and Z'. But I agree, I'm not sure the two could ever be teased apart.

Anonymizing personal contributions also seems like a good idea to me.

[McKinneyTexas]

If you want to make the case that buying airtime for a politician in a de facto exchange for input in crafting legislation is *exactly* like buying a coke, then make that case.

This is goal post moving. No part of my argument, nor any part of Sapient's, referred to a quid pro quo, nor was the law, pre-UC, limited to prohibiting quid pro quo deals. The language that Sapient quoted applies equally to any other commodity, based on economic level. The question Kagan asked, in effect, was why should rich people be able to buy more media exposure than poor or middle class?

you can spend whatever you want on political advocacy, but it has to be completely anonymized before being spent. I havent thought through the implications at all, but it seems like another way to attack the money = buying influence problem wo actually prohibiting spending on speech.

Others have thought this through and it produces an awful result: millions spent by the Kochs or Soros or who knows who in favor of someone. The spender remains anonymous from the public, but do you really think the beneficiary wouldn't find out who it was? And act accordingly? And no one would ever know. Which is why disclosure is the best you are going to get without even more oppressive and constitutionally suspect laws and regulations.

[Priest]

As much as I agree with the underlying premise on the corrupting influence of wealth/money on the political system, it is all too easy to imagine ways corporations could evade the limitations being proposed here.

For example: "Friends of Coal", an organization composed of actual persons who just coincidentally happen to be the spouses of people that get paid as "consultants" millions by various corporations in the coal industry.

So, I guess, an amendment mandating publicly subsidized campaigns for all candidates (or qualifying advocacy groups in the case of ballot measures or proposed legislation), at the level of $X plus the inflation rate, or a greater rate of increase as the Congress may authorize. Part two would require any person or entity that sells advertising time and space to any candidate must make equivalent advertising time and space available to all candidates at the same rate.

I will leave it to the regulars here to dismember the specifics of this proposal, but the general intent is, give everybody the opportunity to make their case on the merits.

[McKinneyTexas]

Priest--would a challenger have the same limits as an incumbent?

[bobbyp]

Really? Virtually every "volunteer association" that I know of is a creature of the state

Well, no. Most are not. You might make a case for unions, but legislative and judicial history argues against that. Corporations are granted their "personhood" (ability to sue, etc.) in return for a grant of limited liability. Please tell me the quid pro quo for say, the Chamber of Commerce? The UAW? The ACLU? Further, what other of these entities can "buy back their own shares" and virtually represent NOBODY except their own state sanctioned avarice? Shells within shells.

In the good old days, corporations were charted for a specific purpose and often for a very limited period of time. That was then, back in the golden early era of a Republic still basking in the glow of its Founders (early 19th century).

The state creates corporations. To insist that We The People retain the power to regulate corporate political activity strikes me as eminently appropriate give the gift of money grubbing we grant in return.

Today's so-called conservatives are indeed quite radical. They seek nothing less than the commodification of all human activity.

[Carleton Wu]

This is goal post moving. No part of my argument, nor any part of Sapient's, referred to a quid pro quo, nor was the law, pre-UC, limited to prohibiting quid pro quo deals. The language that Sapient quoted applies equally to any other commodity, based on economic level.

Im pointing out that calling things equivalent is not the same as demonstrating that they are equivalent. Your second sentence is *once more* a restatement of your position rather than an argument for it. Perhaps you could tell us why you think this language applies to every other possible commodity(!) rather than telling us that you do. You've made that clear.
[Also- if anything, my extension of your case is much less dramatic than your extension of Sapient's. The leap from "political spending" to "political spending that buys influence" versus the leap from "political spending" to "every possible commodity on the face of the earth"].

[Priest]

McK - I was thinking more of a floor, rather than limits, but the subsidy amount would be the same for all.

The kind of circumstance I have in mind is the '92 Dem Presidential primaries, when Tsongas "suspended" his campaign because of his financial situation despite being the top alternative to Clinton. There was anti-Clinton sentiment (both ideological and pragmatic) that had nowhere to go, practically speaking (Brown did pick up some of that support).

[sapient]

Sebastian, speech and press are different. Obviously, the press amplifies speech so the two are very much related in that libel can be prosecuted against the speaker and the amplifier (hence, NYT v. Sullivan). But if I talk to you, I am not "the press". A speech in front of an audience is not "the press." The press covers it. Both things are protected but they are not the same. But I agree that the distinction isn't all that important to the current discussion.

It's fairly recent in American history that megamoney has become such a big issue in elections. That's mostly because of the huge expense of access to the broadcast media (meaning FCC regulated media). Ron Paul could make as many speeches, and distribute as many pamphlets as he ever wanted for as much as it would cost him to print them (nominal), and distribute them. The Constitution doesn't require that Ron Paul be able to buy the same ad space in the New York Times as Mitt Romney, and that's fine with me. But (IMHO) it shouldn't forbid the citizens of the United States, through legislation, to create a system where Ron Paul can buy as much time as Mitt Romney to buy ads. That doesn't infringe on Mitt Romney's speech - he can buy as much has he wants. It amplifies his competition, but how does that infringe on Mitt Romney? This is the issue. So far, the Supreme Court has said that rich people's right to access can't be infringed. To my mind, that's a new Constitutional right for rich people.

[sapient]

russell, out of curiosity, how would saying that corporations aren't people solve anything? The problem seems to me to be money. Anyone who has enough money to influence a political official to a greater extent than his/her/its vote or power of reason - that seems like undue influence to me. And corporations don't vote (for now). What direct effect do you think such an amendment would have?

[sapient]

bobbyp, the ACLU and other similar organizations are usually organized under state statutes as "not-for-profit" or "nonstock" corporations. For an example, which is similar to those in other states, see Virginia's. They don't have shares, but do have limited liability, and receive other benefits of corporations (such as the right to buy and sell property, and the kinds of protections discussed in Citizens United).

[Sebastian]

"But if I talk to you, I am not "the press". A speech in front of an audience is not "the press." The press covers it. Both things are protected but they are not the same."

I think you're confusing 'the press' as instruments of communication and 'the Press' as a profession. In almost any case I can think of, 'the press' is about instruments of communication. The group of people known as journalists don't have special constitutional rights. Which highlights the problems this kind of proposal are going to have vis-a-vis journalists. Most journalists are going to have corporate ties. At the very least they are likely to be employees of corporations, or be used by corporations like the NYT. If corporations can't spend money on political speech, reporters can't report because corporations won't have freedom of the press.

"The Constitution doesn't require that Ron Paul be able to buy the same ad space in the New York Times as Mitt Romney, and that's fine with me. But (IMHO) it shouldn't forbid the citizens of the United States, through legislation, to create a system where Ron Paul can buy as much time as Mitt Romney to buy ads. That doesn't infringe on Mitt Romney's speech - he can buy as much has he wants. It amplifies his competition, but how does that infringe on Mitt Romney? "

The first part is clearly correct. Why do you think the second part would be unconstitutional? So far as I know public spending laws are very much constitutional, and in fact in force right this second in the US.

I'm not convinced they are a wise policy. Nor do I believe they actually work very well. But what case do you think makes them unconstitutional? It isn't Citizens United.

[sapient]

Sebastian, it is you who are confused. You say: "The group of people known as journalists don't have special constitutional rights." True enough, and I didn't say they did.

In terms of your response to my second quote, have you read the Arizona case that I mentioned? Would you care to distinguish the Arizona statute (that was ruled unconstitutional) from the situation I described?

[Phil]

The group of people known as journalists don't have special constitutional rights.

Uh, you may want to ask bloggers and the courts whether that's the case. Some courts have already ruled that bloggers aren't covered by shield laws that allow journalists to protect sources. .

[Snarki, child of Loki]

the thread has moved on, but to clarify my comment from 'way back in the beginning...

The corporation "disclosure" of political/media support needs to be disclosure to shareholders. Not necessarily the public, for a private corporation. The equally important feature is that shareholders can individually and easily "opt out" and receive a proportionate refund of the cost, to compensate them for THEIR investment being used for a purpose which they do not approve.

Thus turning the issue into one of corporate governance, not constitutional law, strongly based on property rights.

Now, the effect? Well, for many investors the result would be "I get free money for signing this paper? For reals?" which would restrain corporations. Many just wouldn't want to bother with the hassle.

You can apply the same idea to non-profits, but I'd expect more unanimity of purpose.

Change of subject: the money=speech=money equation is FAR more worrying when it causes restrictions on how "money" is used to restrict how "speech" is used.

For example, speak sympathy to the goals of the IRA = material support of terrorism = serious felony.

[sapient]

I guess the general issue that bothers me is that, although most people agree that money corrupts politics (in that wealthy interests have disproportionate political power), how do we fix that in light of the Supreme Court's rulings? That (to me) is a more vital question than the various issues of whether corporations are people, or the distinctions between various first amendment protections.

Should we get money out of politics? If so, how do we do it? Or is there some other problem that russell is getting at?

[envy]

I don't think the government should be in the business of telling people

There's a lot of other stuff that could also go on the end of this, one of which could very well be how much free speech they can exert. Plus endless other things, of course, among which are who they can sex with, how many people they can have sex with, and whether their lights can be incandescent or must be compact fluorescent.

Speaking strictly for myself, I'll be up in arms on that grim day when the government starts telling to me that I can no longer have sex with people who have incandescent lights.

[russell]

For example: "Friends of Coal", an organization composed of actual persons who just coincidentally happen to be the spouses of people that get paid as "consultants" millions by various corporations in the coal industry.

Yeah, no matter what you do somebody will find a way to game it. People game the situation we have now. At least if corp personhood was off the table, you could actually pass laws to keep it down to something like a noise level.

Can't do that now.

Which brings me to:

russell, out of curiosity, how would saying that corporations aren't people solve anything? The problem seems to me to be money. Anyone who has enough money to influence a political official to a greater extent than his/her/its vote or power of reason - that seems like undue influence to me. And corporations don't vote (for now). What direct effect do you think such an amendment would have?

If corporations were not considered people for purposes of interpreting the Constitution, they would not be entitled to the rights guaranteed to people under the Constitution.

So, Congress, or even states counties or towns, would be allowed to pass laws governing if, when, and how they -- meaning corporations -- could participate in the political process.

Citizens United is a completely consistent and logical ruling, if you assume that corporations are persons under the Constitution.

Corporations don't vote, and they have no need to vote. They gain extraordinarily more access to policymakers than 99.9% of voters do by virtue of the $$$ they flood the political system with.

Folks object to the Koch Bros (as do I, frankly). But the Koch's *personal* political contributions since the 80's are something like $100 million.

Total lobbying expenditures in 2011 so far comes to $2.45 BILLION dollars, with a 'B'. Total in 2010 was $3.51 billion.

I'm +2, so somebody please check my math, but if I'm mistaken $3.51B is about $6.5 million dollars PER CONGRESS PERSON. In one year.

Nearly all of the top lobbying contributors are corporations or professional associations including corporations.

Frankly, if the Kochs want to spend many millions of their own money to outright buy a couple of House seats, or even a Senate seat or two, I can live with that. It will be balanced out by the millions of other people whose interests don't specifically align with the Kochs.

It's the $3.51 billion that makes the halls of Congress smell. IMVHO.

Also, for the record, I'd like union money out of the game also. Unions exist to advocate for the interests of their members regarding the terms and conditions of their employment. That's absolutely great, I support them 100% in that goal, but that agenda is not the same as political speech.

[heckblazer]

"Nearly all of the top lobbying contributors are corporations or professional associations including corporations."

All that really says is that corporations are an extremely useful and hence popular way of organizing people. The Sierra Club, the ACLU and Greenpeace USA are all organized as corporations. The fact that people can easily band together in that way makes much, much easier to counterbalance folks like Koch who have huge personal fortunes.

You can definitely put me down as someone who thinks the whole "money equals speech" business is the real problem, with corporate personhood at best a sideshow.

[Hartmut]

Over here media have to provide (a certain amount of)ad space free of charge to political parties that have successfully registered during election season (our system is essentially based on parties not candidates). So even obscure minor parties will get heard to a degree. Most ads are right before the news, so many people will actually see or hear them. On the other hand parties are (iirc) forbidden from buying ad space like they were ads for shampoo etc.(at least beyond a certain limit but I don't have the details at hand). So, in broadcast media the playing field gets levelled quite a bit (and not for the major party cavalry to ride down the opposition on foot). What is not affected by that are billboards, although there are rules about how many of those may be put up per area, when they can be put up and when they have to be removed again.
Iirc there is not a single millionaire in our parliament and most definitely no billionaire.
I do not claim that we are in any way free of corruption or lobbying but our normal parliamentarians are not as openly bought (or leased) as is the case in the US. Here you have to buy the prime ministers and risk that he (or they) will be replaced on the spot when it becomes known. Disadvantage: politics over here works like sleeping pills. It's boooooring.

[Harald Korneliussen]

I see commenters like Sebastian and Slartibartfast (who happen to be very privileged people in the red in tooth and claw struggle to make one's opinions heard) display very little creativity when it comes to schemes that could limit political inequality arising from inequality of money and media access.

The alternatives are apparently the status quo or chaos! anarchy! tyranny! dogs and cats sleeping together!

To the suggestion that limits on paid speech by corporations also would limit paid speech by unions and interests groups, I say: good. The influence of a union, or a chess club for that matter, should not be dependent on the size of the participants' wallets.

Realize that when you permit someone to run an ad reaching millions, they are enroaching on a shared, limited resource, namely the public's attention and capacity for discussion. The least you could do is compensate the public economically - e.g. put a tax on advertising services, and distribute the revenue thus collected in an equal share to all citizens.

Another way to achieve the same goal would be vouchers - media vouchers. For any enterprise selling advertising space/impressions, whether political or not, demand that payment be made only in the form of these vouchers. So you can decide if you will spend your 15 minutes of public attention on promoting your chess club or promoting Obama - or maybe some combination.

A third option, quite different from these two, would be to make public (in other words, tax-funded) media institutions, where all editorial decisions are made by a board of citizens randomly allotted for the purpose - like a proper jury would be.

These are all revolutionary proposals, I do not pretend otherwise. They would take a lot of power away from people who have more than their fair share of it - rich people, politicians, advertising agencies, high-profile bloggers etc. It will be an uphill battle to convince us to let go of it willingly.

[russell]

All that really says is that corporations are an extremely useful and hence popular way of organizing people.

Or: all that really says is that corporations are an extremely useful and hence popular way of amassing very large pots of money, which can then be used to purchase political outcomes.

The Sierra Club, the ACLU and Greenpeace USA are all organized as corporations.

Sierra Club, ACLU, and Greenpeace USA do not appear in the Open Secrets list of top contributors.

And, as noted upthread, I'm fine with preserving Constitutional protections for the activities of groups of people - real, live human beings - who organize specifically to engage in protected activities like political speech.

So Sierra, ACLU, Greenpeace, also NRA, Tea Party USA, and the American Family Council. All good.

Exxon Mobil, not so much.

If corporations can't spend money on political speech, reporters can't report because corporations won't have freedom of the press.

I'm not sure this hangs together Seb.

The fact that I cannot be prevented from hiring a hall and holding a political meeting is a function of my 1st Amendment rights, not those of the company that owns and operates the hall.

The fact that the police (sort of, mostly, once upon a time) need a warrant to tap my phone or review my email is a function of my 4th Amendment rights, not those of the phone company or my ISP.

I don't see why the 1st Amendment rights of a journalist, essayist, or editor are insufficient to protect the press.

That's not the rationale we work under *now*, but that's not the same as saying it's not a sufficient rationale.

[Slartibartfast]

see commenters like Sebastian and Slartibartfast...display very little creativity when it comes to schemes that could limit political inequality arising from inequality of money and media access.

I apologize for my lack of political artistry, and bow to those more skilled in politicking.

The alternatives are apparently the status quo or chaos! anarchy! tyranny! dogs and cats sleeping together!

Or, possibly, infringement of free speech rights of individuals. If you skipped my discussion of that, possibly due to its lack of creativity, then you missed my whole point.

[Rob in CT]

Count me in support of a proposal that curtails money in politics including union money. Just 'cause Unions usually support Team Blue and I'm (presently) with Team Blue, doesn't mean I think their money shoudl tip the scales any more than money from the Kochs, Exxon, etc.

Money = speech is definitely the problem. The question is how to solve that problem without introducing new problems that are actually worse.

[Harald Korneliussen]

> Or, possibly, infringement of free speech rights of individuals.

What good is free speech, if you're standing in front of a stadium concert-scale loudspeaker?

It's you who've missed the point. Free speech is important, but in the final reconing it is just a means to an end - and that end is political equality, equal opportunity to influence the collective decisions your society has to make.

In the face of David Koch's billion-dollar boosted free speech, even your free speech (and as a well-connected blogger/academic you're probably in the top 5-10% most influential people) might as well be made from inside a prison camp.

[Slartibartfast]

What good is free speech, if you're standing in front of a stadium concert-scale loudspeaker?

Poor analogy. If you happen to be in the vicinity, you can't just ignore the bugger, nor can you be heard yourself.

We're not talking about loudness, here, or drowning out the speech of others.

It's you who've missed the point.

That's just a declaration of victory in drag. I think I get the point fairly well; I just happen to disagree with you.

[McKinneyTexas]

Rules, rules, rules. We need more of them to compel dishonest people to be honest. Laws, regulations, constitutional amendments, telling people how they can and can't organize and what they can and cannot say, depending on how they do or do not organize themselves will surely accomplish that goal.

Or not.

Do you think corporate influence, or any other improper influence, in the electoral process is more or less destructive than the influence of special interest group lobbyists in the legislative/spending/taxing arena?

It is fair to require unions, corporations and the like to disclose their spending on lobbyists, the targets of their lobbying efforts and their political donations.

It is a very bad idea to require individual's, who are members of any group, regardless of agenda, to be disclosed.

To illustrate: do you want employers with political skin in the game to know if their employees are members of a group that works against that employer's interests or views?

That is a real problem for civil trial lawyers in Texas. Almost all of us believe that tort reform and deck stacking in favor of institutional interests has gone way beyond reason. Yet, few of us who represent institutional interests are willing to speak up, for fear of losing clients. I haven't lost any clients (yet) but I know lawyers who have and I know many who are afraid to speak up. Anonymity (privacy) has its place for people, not institutions.

If you want a dividing line, there it is: institutional influence must be fully disclosed, private actors not. Then, let the system, if it can, sort itself out. Quit trying to regulate what people can or cannot do or say.

[Countme-In]

I'm not a Freudian, I'm a Groucho Marxist, but if money is speech, then maybe you can roll this into a cigar and smoke it as long as you take it out of your mouth every once in a while:

Freud writes in "Dreams in Folklore" (1958 [1911]): "How old this connection between excrement and Gold is can be seen from an observation by Jeremias: gold, according to ancient oriental mythology, is the excrement of hell"

Freud underscores the importance of this equivalence in terms of the object: "Defaecation affords the first occasion on which the child must decide between a narcissistic and an object-loving attitude. He either parts obediently with his faeces, 'sacrifices' them to his love, or else retains them for purposes of auto-erotic satisfaction and later as a means of asserting his own will"

Read more: http://www.answers.com/topic/feces#ixzz1dyVGAUhB

So, if feces are money, and money talks, then the single incident of an Occupy Wall Street participant going number two on a police cruiser in the street is now protected political speech.

Plus, that poor misguided guy's actions have the further upside of transparency, unlike, say, Jamie Diamond's daily foray into the executive penthouse bathroom voting booth/stall to deposit all of that talkative money into a tube that goes directly into the pockets and mouths of the power-brokers in Washington.

And, of course, we now have some clue from whence which end of Newt Gingrich the money does its talking.

J. Paul Getty said, in this vein, that "Money is like manure. You have to spread it around or it smells."

Not that the art he purchased stinks.

But it might explain why our political process is in the crapper.

Or as Rob in CT said, upthread (twice): "We're screwed."

You can take that to the bank and not even get a repossessed toaster these days.

[Harald Korneliussen]

Poor analogy. If you happen to be in the vicinity, you can't just ignore the bugger, nor can you be heard yourself.

Huh? That is why it is a good analogy. You can't ignore the Koch loudspeaker in the room - not if you want to make use of soundwaves yourself.

We're not talking about loudness, here, or drowning out the speech of others.

If you aren't, you need to. No discussion of freedom of speech can afford to leave it out - that ought to have been obvious by the invention of mass media.

Just as a blaring loudspeaker does not interfere with your act of speaking per se, super PACs don't interfere with your right to political speech.

I think I get the point fairly well; I just happen to disagree with you.

Without articulating your disagreement, that is a totally empty statement. Do you think a formal right to free speech is worth sacrificing political equality for? Why?

[Slartibartfast]

You can't ignore the Koch loudspeaker in the room

Yet, somehow I do. They somehow also manage to avoid drowning you out.

you need to

In order to agree with you, I'm sure that me focusing my attention on that to the exclusion of all else is vital.

Without articulating your disagreement

If you think that neither what I've written upthread nor our back-and-forth constitutes articulating my disagreement, I think our conversation is finished.

I don't disagree with you that there are some problems posed by the influence of money in politics, Harald. I just think that there are solutions less unpalatable than muzzling. And you know why, because you've read the thread. Right?

[Countme-In]

MckT asked:

"To illustrate: do you want employers with political skin in the game to know if their employees are members of a group that works against that employer's interests or views?"

Good point.

But if we turn it around and ask if we want employees with political skin in the game to know if their employers are members of a group that works against the employee's interests or views, then I could probably say Yes.

Further, "Anonymity (privacy) has its place for people, not institutions.

Well, I spose, but once corporate and union institutions which have had legal personhood conferred on them congregate anonymously and ominously into an organization whose only identifying marker is an anonymous mail drop, then I think we have a horse of a slightly different but anonymous color.

If corporate and union institutions are now legally people and now may talk as a unit with their money anonymously through "People For The Anonymous Way" or the "Union of Concerned Anonymous Scientists", then anonymity has indeed found its place for institutions.

[Countme-In]

Natch, I put all of this forward under an assumed name.

[russell]

Quit trying to regulate what people can or cannot do or say.

If this is addressed to any of my points here, I'd like to point out that I am very, very specifically NOT interested in regulating what people can or cannot do or say.

What I am interested in is allowing *people*, by which I mean human beings, to regulate what entities that *are not people* can and cannot do or say.

Right now that's off the table.

To a very large degree, I'm not that interested in whether, or how, any legislative body excludes corporations from engaging in political speech or not. That's going to be a moving target, and I think that's fine.

All that I am interested in is establishing that it is legitimate for people - human beings - to do so, *at all*, through their elected representatives.

If you don't like the rules we end up with, that's fine. They can be changed.

I am purely interested in establishing that the rules *can be made in the first place*.

$3.51 billion dollars in one year McK. Not from Greenpeace, or personally from the Koch Brothers, or from the ACLU or the NRA.

From the US Chamber of Commerce, and the American Medical Association, and GE, and Pharma, and Blue Cross/Blue Shield.

$6.5 million dollars PER CONGRESS PERSON, per year.

Maybe that strikes you as fine, maybe it doesn't. But whether it strikes you as fine or not, there's f**k-all that can be done about it, because participation in the political process is viewed as a protected form of speech, and the right to engage in it has been granted, by the SCOTUS, to amorphous giant pots of private money.

It's profoundly corrupting, and the people - the human beings - who live in this country can't do a freaking thing about it, because the last court of appeal in the land has said "No".

If you want to go over the heads of the Court, you have to amend the Constitution.

So, that's my plan.

You want regulation? We can horse around with stupid half-@ssed webs and matrixes of rules and formulas about who can do what, when, in what amount, under what conditions, etc etc etc.

Or we can just cut the freaking Gordian knot and say people can play, things that aren't people can't.

Or, at least, things that aren't people can only play if, and to the degree that, people allow it.

If only real, live people are allowed to play, I'm really not that worried about the corrupting influence of money. There aren't that many folks that are going to put their own personal fortunes into the pot.

Koch Bros? $100 million in thirty years. That's not enough to really tip the balance. I'm not worried about the Koch Brothers as personal actors.

$3.51 billion in one year. That makes a dent.

[Carleton Wu]

Rules, rules, rules. We need more of them to compel dishonest people to be honest. Laws, regulations, constitutional amendments, telling people how they can and can't organize and what they can and cannot say, depending on how they do or do not organize themselves will surely accomplish that goal.

Yes, rules are bad. Let's get rid of all of the rules.
Oh, wait, you just want to get rid of the rules you don't like?
You likewise rail against a reflexive drive to regulate and limit others' activity, but surely this is only directed at regulations you don't like; at least, Ive never heard you advocate for anarchy.
From previous discussions, taxes and government spending are generally bad, excepting those you prefer (excuse me, 'those that are necessary' iirc)...

I wish you would avoid blanket statements like this that could be deployed against any item in the category, but only to be used against those against which you have another agenda. I realize it would be much harder to make a specific case against a specific set of regulations...
[Obama is evil because all men are evil, but Newt is a nice guy.]

[Sebastian]

Sapient, for some reason I thought Arizona Free Enterprise was a state case, but on initial reading it looks like I violently disagree with it (I only read the facts and holding not the dozens of pages of reasoning, so a more considered opinion of it will have to wait until I have time.) So I apologize, it makes no sense to me. I thought you were talking about something in Citizens United about it (which I am intimately familiar with).

The Arizona case on first blush makes no sense to me. It seems to me likely to be a very expensive policy if they aren't careful, but I don't see 1st Amendment problem initially. (However I am a bit worried about how you choose who gets subsidized. Eventually you could get back to the favored/unfavored points of view problem which would definitely be a 1st amendment issue).

Russell: "The fact that I cannot be prevented from hiring a hall and holding a political meeting is a function of my 1st Amendment rights, not those of the company that owns and operates the hall.

The fact that the police (sort of, mostly, once upon a time) need a warrant to tap my phone or review my email is a function of my 4th Amendment rights, not those of the phone company or my ISP.

I don't see why the 1st Amendment rights of a journalist, essayist, or editor are insufficient to protect the press."

It is insufficient because journalists, essayists or editors are HIRED by corporations to do speech and then the corporations AMPLIFY their speech. This is exactly what you say you don't want corporations to be doing. When corporations do speech now they hire people to craft the speech, and then they public it on the airwaves. That is exactly what you don't like. That is also exactly what the NYT does.