The Supreme Court decision

[gwillen]

For those on my flist, if any, who support the Court's decision in /Citizens United v. FEC/, I would be interested to know your answers to the following questions:

Is a toaster a person?

Is a corporation a person?

Can you explain the difference?

What would it mean for a toaster to have a right to free speech?

What does it mean, precisely, for a corporation to have a right to free speech? This is not the same as the free speech rights enjoyed by any of the people involved as individuals -- this, as ruled by the court, is a separate right, belonging to the corporation as an entity in and of itself, completely independent of the rights of any of the individuals involved.

Can you explain the difference?

ETA: Justice Rehnquist's dissent in /First National Bank of Boston v. Bellotti/
makes for excellent reading on the subject.

Comments

[platypuslord.livejournal.com]

Before necessarily getting into an argument about whether the decision was correct, I think it would be helpful to make sure we all understand the details of the case. I read most of the Wikipedia article, but I'm concerned that wikipedia may not be completely accurate on a politically charged recent event.

As I understand it, a "conservative nonprofit" organization made a smear ad about Hillary Clinton before the primaries, and attempted to show it as a movie on Direct TV. The FEC ruled that this violated Law 441b, which said corporations could not directly spend money to influence an election.

(My corporation has a "Political Action Committee". They routinely ask you to give them some of your own money, so that they can donate the money as campaign contributions to a politician who can use it for advertising. I believe this twisted machination is intended specifically to avoid Law 441b.)

Anyway the Supreme Court overturned the decision, apparently arguing that corporations should have free speech. Wikipedia makes a rather pointed comment about "...the statement by then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, that the government would have the power to ban books...", but I'm not sure if that is real or if it's partisan wikinoise.

Wikipedia has a "Criticism and Support" section. All the supporters of the decision are described as "conservatives"; all the critics are described as "liberals".

[gwillen.livejournal.com]

Hm. Given that it's a new event, I do not think it's worth my time to try to evaluate the Wikipedia article critically, because it's surely changing way too fast for any evaluation to be stable.

I think your understanding of the origin of the case is correct.

PACs are indeed, as I understand it, constructed precisely to get around Law 441b.

Even if the quote is real, I would say it's still nonsense, partisan or otherwise. Actually it's so absurd I suspect it's fake.

Notably, unions support the decision, since they are legally corporations and want to be able to engage in political speech. Other than that I think it's mostly a liberal/conservative split. Personally I'd find the outcome of the case loathsome regardless of who originally sued whom.

If there are any facts or background you are interested in, I can tell you what I know or believe to be true.

[platypuslord.livejournal.com]

...the statement by then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, that the government would have the power to ban books...

I searched for that quote and it seems to come from http://www.nytimes.com/2009/03/25/washington/25scotus.html?hp, written by one "Adam Liptak". Adam Liptak is the Supreme Court correspondent for the New-York-Times, and I did not find any evidence that he's particularly partisan.

[platypuslord.livejournal.com]

This ruling means that the "conservative nonprofits" will continue to create smear ads against Democrat politicians, which is sort of a problem. But I'm not convinced that the law was terribly effective at preventing this behavior. They were forbidden from "expressly advocating the support or defeat of a candidate", but there's quite a lot you can say without crossing that line.

This ruling also, if I understand it correctly, means that my own corporation will be free to sponsor political ads directly. This is sort of nice, to the extent that any political activity can be described as "nice". More specifically, if you believe that this rule was mostly constraining the speech of "good guys" while having little effect on the "bad guys", then overturning it would lead to a more level playing field.

I suppose that, given Rush Limbaugh's express support for the ruling, we can conclude that he believes it will favor the Republicans. I'm not sure how he thinks that will work, but probably he knows better than I?

I'm sort of nervous about any argument that goes, the "conservatives" like this and the "conservatives" are always evil, therefor I dislike it.

[gwillen.livejournal.com]

I am not interested in parties or level playing fields as pertains to this ruling. I certainly don't care who is for or against it.

I just think that the idea that corporations have free speech rights is a really stupid idea with dangerous consequences.

[platypuslord.livejournal.com]

While I'm summarizing things: if I understand Rehnquist's dissent correctly, he's making the argument that corporations are psychopaths (in that their obligations to shareholders cause them to focus exclusively on gaining money and power) and therefore should be kept out of politics. Is that a correct summary?

[gwillen.livejournal.com]

Haha, have you ever seen or read /The Corporation/? You just summarized its thesis. I highly recommend it.

As pertains to Rehnquist, I think you have interestingly paraphrased part of his argument, and I agree with what you say, although I do not think it is really an accurate summary of the entirety of what Rehnquist says.

[platypuslord.livejournal.com]

I do not think it is really an accurate summary of the entirety of what Rehnquist says

For my convenience, and the convenience of the other readers of your blog who may have done even less research: could you please summarize the rest of his argument here?

[gwillen.livejournal.com]

I can try. My summary came out quite long (300 words to the original's 2300) but I think it's more readable than the original. I can try summarizing the summary if you'd like.

SUMMARY:

Rehnquist makes a number of points.

* Many legislative bodies at both the state and federal level have concluded that "restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible." The Court ought to think hard before ignoring that.

* Corporations have previously been held to be "mere creatures of law, [possessing] only those properties which the charter of creation confers upon [them]". Creating a corporation "does not invest it with all the liberties enjoyed by natural persons".

* If a state charters a corporation for a particular purpose, it necessarily guarantees to the corporation what liberty is necessary to carry out that purpose. I.e. a newspaper corporation is entitled to freedom of the press.

* Political speech is not necessary to the purpose of a commercial corporation.

* "A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere." (There is a good deal of further material I could quote in this and the following paragraph, and I suggest reading this section in its entirety.)

* Furthermore, the statute under discussion would still permit political expression by a corporation "when a general political issue materially affects a corporation's business, property or assets." So it does not ban any speech that can possibly be germane to a corporation's purpose.

* Recent decisions on this topic have focused on the public's right to recieve information, rather than the speaker's right to say it. [I am interpolating a lot in the following sentence, but I think it's the most reasonable reading.] Since corporations are artificial creations of the state, the state's choice to create them with limited rights to political speech in no way restricts the public's rights of political activity which existed prior.

[platypuslord.livejournal.com]

As to corporations and free speech: I can think of several possible situations, off the top of my head, in which I would be very sad if my corporation were denied the ability to speak freely. I probably shouldn't enumerate them in a public blog post.

[platypuslord.livejournal.com]

It sounds to me like the problem is not so much that we want to prevent corporations from communicating, as that we would like to prevent entities from efficiently spending money to affect our political process. In other words the problem is that our political system is too easy to influence via advertisement.

To the extent that Law 441b was doing something to hold that off, I guess it's sad to see it go. But I feel like there ought to be better ways to fix the problem than censoring corporations' political expression.

In particular, what if we had a law that let us aggressively prosecute political entities that make demonstrably false statements? (cf. this long and bitter rant from FiveThirtyEight.) Considerable tuning would be necessary.

Alternatively, maybe in ten years' time the Internet will make television advertising obsolete. That will have its own set of problems, of course (it will make it even easier to "live in a bubble" and only read news sources we already agree with), but maybe it will make it more difficult to influence elections via brute advertisement.

What if we develop strong web-of-trust technology that lets us annotate communications as false or misleading? In some sense this is just an antispam problem such as we have already solved for the email domain. (And, IMO, it's a technology we badly need anyway.)