Eye of Providence
January 21, 2010 7:36 AM Subscribe

The Business Plot of 1933 has reached a logical conclusion: the Supreme Court has ruled that corporations may spend freely (pdf) to support or oppose candidates for president and Congress.
posted by four panels (326 comments total) 25 users marked this as a favorite

I can't wait for the election of President Dwayne Elizondo Mountain Dew Herbert Camacho.
posted by billysumday at 7:39 AM on January 21, 2010 [57 favorites]

Yay! Or maybe not.
posted by 6550 at 7:40 AM on January 21, 2010

To be clear:

It leaves in place a prohibition on direct contributions to candidates from corporations and unions. ... The decision, written by Justice Anthony Kennedy, removes limits on independent expenditures that are not coordinated with candidates' campaigns. The case also does not affect political action committees...

So Raytheon can't write a check directly to the Brown 2012 campaign. But they buy their own ads saying what a manly, truck-drivin' sort of fellow Senator Brown is.
posted by Joe Beese at 7:40 AM on January 21, 2010 [3 favorites]

Sick.
posted by interrobang at 7:43 AM on January 21, 2010 [3 favorites]

Fuck.
posted by Ironmouth at 7:44 AM on January 21, 2010 [1 favorite]

Corporations don't like uncertainty. Corporations like us to consume, consume, consume, and to not ask questions. They like us to stay relatively ignorant, have a basic trust of business, and follow trends. President Palin's first acts in 2013 will be interesting, to say the least.

So Raytheon can't write a check directly to the Brown 2012 campaign. But they buy their own ads saying what a manly, truck-drivin' sort of fellow Senator Brown is.

Which will basically function the same way.
posted by cashman at 7:44 AM on January 21, 2010 [4 favorites]

But they buy their own ads saying what a manly, truck-drivin' sort of fellow Senator Brown is.

Or they can swiftboat the Honorable Sen. Brown's opponent.
posted by Blazecock Pileon at 7:44 AM on January 21, 2010 [8 favorites]

Oh here's a shocker:

By a 5-4 vote, the court on Thursday overturned...

posted by delmoi at 7:45 AM on January 21, 2010 [3 favorites]

I, for one, welcome our newly recognized corporate masters.
posted by Max Power at 7:45 AM on January 21, 2010 [6 favorites]

KEEPS GETTING BETTER
posted by cavalier at 7:46 AM on January 21, 2010 [6 favorites]

Say what you will, but this is a victory for free speech.
posted by ripley_ at 7:48 AM on January 21, 2010 [2 favorites]

people i'm still face down on the coach from yesterday please give me time to recover
posted by The Whelk at 7:49 AM on January 21, 2010 [11 favorites]

The Business Plot of 1933 has reached a logical conclusion

You mean Santa Clara County v. Southern Pacific Railroad in 1886.
posted by DU at 7:49 AM on January 21, 2010

Not so much free speech - More like excessively funded.
posted by MysticMCJ at 7:49 AM on January 21, 2010 [2 favorites]

Say what you will, but this is a victory for free speech.

CEOs already have free speech rights because they are (generally) humans. They don't need additional rights acting for the fictitious persons that are their business dealings.
posted by DU at 7:50 AM on January 21, 2010 [93 favorites]

We spent all that time and energy on evolution and this is what we get? Money talks (more and more every day, apparently) and bullshit makes the rules.
posted by Benny Andajetz at 7:50 AM on January 21, 2010

This is a split pretty much along party lines with Democratic nominees in the dissent along with Stevens (appointed by Ford). When my conservative father starts screaming about this, I will be sure to remind him that activist judges appointed by Reagan and the Bushes are responsible for the decision.
posted by batou_ at 7:50 AM on January 21, 2010 [4 favorites]

@ripley:

Perhaps, but I'm becoming more and more of the persuasion that the concept of "corporation as person" is a failure itself. It may be that this is where the line of attack must be made. After all, once a corporation's independence is limited, free speech is moot.
posted by parliboy at 7:51 AM on January 21, 2010 [17 favorites]

.
posted by fleetmouse at 7:51 AM on January 21, 2010

.
posted by BeerFilter at 7:53 AM on January 21, 2010

i'm still face down on the coach

Among my friends, "coach" is another word for the ganj'. The way things are going in this once promising nation of ours, I think I'm gonna need to be face down on the coach almost all the time in the near future.
posted by lord_wolf at 7:53 AM on January 21, 2010 [3 favorites]

Huh. The ability for labor unions to spend heavily on elections would seem like something people here would like.
posted by smackfu at 7:53 AM on January 21, 2010

It's like a bad zombie film, the way right-wingers continue to slowly kill off democracy through their Supreme Court justices.
posted by Blazecock Pileon at 7:54 AM on January 21, 2010 [2 favorites]

This is a split pretty much along party lines with Democratic nominees in the dissent along with Stevens (appointed by Ford).

This. I don't understand how people can complain about the Republicans voting party lines when the Democratics do the same. Just because it's 5-4 and not 4-5?
posted by smackfu at 7:55 AM on January 21, 2010 [1 favorite]

Idiocracy quote.
posted by shakespeherian at 7:56 AM on January 21, 2010 [5 favorites]

Why do corporations have rights as individuals, but not the responsibility? If corporations violate the law, they face fines and lawsuits. They don't go to jail. I would like to see a law passed that corporations in violation of the law be shut down for the period in which an individual would be incarcerated. And then be on probation for a period of time after they are allowed to start operating again. I know, sometimes a CEO or such gets prosecuted, but the corporate climate that allows for these things to happen can just keep on keepin on.
posted by batou_ at 7:58 AM on January 21, 2010 [76 favorites]

The ability for labor unions to spend heavily on elections would seem like something people here would like.

Why would I want union management (as opposed to the people the union is composed of) to be able to spend on elections. The unions can just collect less money and suggest donations to the membership. Similarly, cprporations can lower their prices and suggest donations to candidates. Which of those entities suggests which candidates will be pretty revealing.
posted by DU at 7:59 AM on January 21, 2010 [2 favorites]

Say what you will, but this is a victory for free speech.

Um. No. First of all, money isn't speech, regardless of what the Supreme Court says. It's wrong on that issue. Secondly, the corporate form is a creation of state law for the purposes of continuing an enterprise across generations and with limited liability to the entrepreneurs. This means (a) that politicking is outside the scope of the purpose for which the idea of corporations was even conceived and (b) the Supreme Court of the United States has, quite literally, no power to rule on this matter. Nothing in the constitution grants any branch of the federal government the power to decide the contours of a legal fiction created by state law. The majority in this opinion has acted outside the scope of its authority and this decision is void ab initio.
posted by jock@law at 7:59 AM on January 21, 2010 [47 favorites]

Now even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes.

Well, I say to them tonight, there's not a downscale America and a upscale America; there's the United States of America of Microsoft.

(APPLAUSE)

There's not a BET America and Viacom America and Telemundo and Panda Express America; there's the United States of America of Sears.

(APPLAUSE)

The pundits, the pundits like to slice and dice our country into Wal-Mart states and Target States: Wal-Mart states for bargain-shoppers, Target States for everyone else. But I've got news for them, too. We worship an awesome deal in the Target states, and we don't like the FDA poking around our delicious Smith's Farms genetically awesome-fied beef in the Wal-Mart states.
posted by billysumday at 8:00 AM on January 21, 2010 [41 favorites]

Huh. The ability for labor unions to spend heavily on elections would seem like something people here would like.

Nobody is more pro-union than me. That said, concluding that "money=speech" is as evil, unAmerican and IGNORANT as anything I can think of. Make no mistake, freedom and the average American citizen have lost here. Badly.
posted by Benny Andajetz at 8:01 AM on January 21, 2010 [13 favorites]

Blazecock Pileon: "Or they can swiftboat the Honorable Sen. Brown's opponent."

And since they won't be coordinating with the Brown campaign (who? us?), they can get as nasty as they like with Brown able to say "I don't have any control over their free speech."
posted by Joe Beese at 8:01 AM on January 21, 2010 [8 favorites]

We're all facedown on the coach, and not a jar of vaseline in sight.
posted by kittens for breakfast at 8:02 AM on January 21, 2010 [7 favorites]

Justice Thomas' partial dissent is breathtaking:

Congress may not abridge the “right to anonymous speech” based on the “‘simple interest in providing voters with additional relevant information,’”

But then he goes on to criticize this principle arguing how the opponents of California's Proposition 8 should perhaps have had their anonymous speech abridged - and that this decision might make that more difficult.
posted by three blind mice at 8:02 AM on January 21, 2010 [1 favorite]

Corporations are individuals... sociopathic individuals.
posted by ExitPursuedByBear at 8:04 AM on January 21, 2010 [9 favorites]

This is a small victory for the fundamental human rights of corporate persons. But I won't consider the struggle for liberty to be over until I'm allowed to marry Georgia Pacific.
posted by Phlogiston at 8:05 AM on January 21, 2010 [52 favorites]

I'll tell you exactly how I feel about this:

$(38.50)
posted by fuq at 8:05 AM on January 21, 2010 [5 favorites]

This would be a big deal if both parties weren't already totally beholden to moneyed interests.
posted by ghharr at 8:05 AM on January 21, 2010 [4 favorites]

But the internet has been moderately helpful in casting a spotlight on embarrassing connections for candidates. In certain elections, the people knowing that a certain company just forked $200,000 over to you might be a bad thing.

Which is why companies will make sure to funnel the money through an innocuous-sounding front organization.
posted by Dragonness at 8:05 AM on January 21, 2010 [4 favorites]

Here's a meaty para from the ruling:

(2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Make of that what you will.
posted by Electric Dragon at 8:06 AM on January 21, 2010 [10 favorites]

I understand the political reasons that the Supreme Court decided the way that they did. As Bush v. Gore in 2000 proved they are willing to sell out everything that they believe in for political gain.

I just don't understand the idea that corporations should have rights that are equivalent to the rights of individuals. I would submit that rights that people have are related to their responsibilities. People have responsibilities that are understood by everyone, moral and ethical responsibilities that are enforced by family and community standards. Some of these responsibilities are codified into laws, some of these laws are civil laws and some are criminal laws.

Corporations have a sole responsibility to make money for their shareholders. Although individuals that make up the corporation may be subject to criminal laws, corporations are not. There is no corporate death penalty, if a corporation commits murder. A corporation can't be jailed for theft or manslaughter. A corporation exists for the sole purpose of shielding it's owners from legal responsibility for the actions of the corporation. It was my understanding that the legal personhood of a corporation was just based on the idea that only people could enter into contracts and so for a corporation to enter into a contract it had to be granted personhood. The idea that a corporation should have the actual rights that are accorded to a person is ridiculous.

And now they have political rights that are equal to that of a person, although to be fair it was kind of silly to pretend that they didn't before. The difference is that they have more money than most of us and a relentless interest in pursuit of their own profit.
posted by jefeweiss at 8:06 AM on January 21, 2010 [15 favorites]

Perhaps, but I'm becoming more and more of the persuasion that the concept of "corporation as person" is a failure itself. It may be that this is where the line of attack must be made. After all, once a corporation's independence is limited, free speech is moot.

I don't think this has anything to do with the concept of corporation as person.

I genuinely believe that organizations shouldn't be limited in what they advocate, regardless of their structure (union, corporation, non-profit, you name it). This is entirely to do with curbing limitations on free expression, and not related to the structure of the organization itself.

Free speech also applies to people and organizations you might not agree with... or at least it should.
posted by ripley_ at 8:06 AM on January 21, 2010

Guess it's time to re-read Jennifer Government.
posted by Thorzdad at 8:09 AM on January 21, 2010 [4 favorites]

It was not a 5-4 decision. It was a 5-8-2-3-2-4-1 decision. This issue is anything but settled.
posted by jock@law at 8:10 AM on January 21, 2010 [1 favorite]

smakfu,

Sorry if I was not celar, but I am not complaining about voting on party lines, I’m dissapointed in this decision. I would rather have less corporate influence in politics, not more. I do not know the polling on this, but I believe that a majority of people whether repub or dem would agree with this (including my conservative father). Therefore, I want him (and others) to realize it is his party that is responsible for appointing the judges that are responsible for the decision.
posted by batou_ at 8:12 AM on January 21, 2010

I hate 2010 already.
posted by lunit at 8:12 AM on January 21, 2010 [17 favorites]

Say what you will, but this is a victory for free speech.

Is it? Under the old rule, corporations engaged in political speech by individual employees and shareholders giving to PACs or making private donations to candidates. Thus, the ultimate decision of whom to support rested with individuals.

But now things are different. Now corporations can spend directly from the corporate treasury, which means that employees, shareholders, and customers are now essentially forced to support the corporation's candidate. If XYZ Corp supports Candidate Smith but you support Candidate Jones, then the only way not to support Candidate Smith is not to work for XYZ Corp, buy stock in it, or buy from it.

Perhaps worse is that the decision of whom to support has moved from an individual to a corporation. An individual might consider many factors in choosing whom to support: political ideology, community interests, personal interest, etc. A for-profit corporation will generally always support whichever candidate will maximize profit, all other considerations be damned. Individuals within the corporation will make the decision to support a candidate that is actually against their own personal interest because it's in the corporation's interest. It perverts the political process away from private/community/state/national interest and toward corporate interest.

This, in my opinion, flies in the face of good sense as well as the structure of our government, which is 'of the people, by the people, for the people' not 'of the people, by the people, for the corporations.'
posted by jedicus at 8:13 AM on January 21, 2010 [17 favorites]

I'm with Benny on this. Yeah, sure, I'm pro-union. But I'm pro-real-union. A union that exists to protect the rights of the powerless is a wonderful thing. A union that exists to funnel money into the pockets of crooked politicians is worse than nothing at all — and I'm not going to support it just because it's got the U-word in its name.

We've already, sad to say, got a few of the latter. But this law looks like flat-out permission — encouragement, even — for more to abandon their principles and head in that direction. So no, it's not necessarily a good thing for the labor movement.

It was not a 5-4 decision. It was a 5-8-2-3-2-4-1 decision. This issue is anything but settled.

Translation?
posted by nebulawindphone at 8:14 AM on January 21, 2010 [1 favorite]

[doomy synthesizer drone plays over black-and-white image of Obama frowning]

Barack Obama and his elite friends in Washington want to take away your right to choose your own doctor.

[music shifts to a soothing chord with a children's choir subtly added to the mix. color picture of Scott Brown beaming from the back of his pickup truck to shake hands with excited voters]

Senator Scott Brown thinks you should have it your way.

[monotone male voice rapidly recites small text at bottom of the screen]

ThisadfwadpaidforbyBurgerKingHoldingsInc
posted by Joe Beese at 8:14 AM on January 21, 2010 [5 favorites]

The dissent is a good read, though, small comfort.
posted by seventyfour at 8:14 AM on January 21, 2010

Since corporations are people, how about we take away their right to spend money on politics but in return grant them the right to vote. Each corporation gets one vote just like every other person. They get the same right as every other sociopath to vote as they see fit.
posted by Babblesort at 8:14 AM on January 21, 2010 [4 favorites]

"This law." Bah. This decision.
posted by nebulawindphone at 8:14 AM on January 21, 2010

Nobody is more pro-union than me. That said, concluding that "money=speech" is as evil, unAmerican and IGNORANT as anything I can think of.

Could we tone down the rhetoric a little?

I don't think it's evil to believe that spending money to advocate a certain position constitutes speech. You might not agree, but try to argue with something better than that.
posted by ripley_ at 8:14 AM on January 21, 2010

Between this and the most recent state elections in the US, is there anyone who still thinks the Republicans are washed up? It looks like Obama and the rest of the Democrats have missed their window of opportunity to make some real changes.
posted by TedW at 8:15 AM on January 21, 2010

Unfortunately there's no Richilieu/Freemasons/NWO to blame, this is Democracy at work right here.
posted by Rei Toei at 8:15 AM on January 21, 2010

I hope McCain and Fieldgold are writing a constitutional amendment right now, because I don't think that the American people will buy this no matter how much money gets shoved at it.
posted by a robot made out of meat at 8:16 AM on January 21, 2010

Even Congress might balk at this absurdity and require that corporations get shareholder approval for all political expenditures.

Looking to cash in? Ask yourself: will this increase or decrease the equity premium?
posted by anotherpanacea at 8:18 AM on January 21, 2010

Brought to you by Carl's Jr.
posted by PenDevil at 8:18 AM on January 21, 2010

ripley_ : Say what you will, but this is a victory for free speech.

Call me a speciesist if you will, but "free speech" has nothing to do with whether or not companies can buy elections.

I almost hate to admit this here, knowing what MeFi thinks of Libertarians, but this counts as one of the few areas in which I disagree with them - Thomas Jefferson had it right, granting corporeal rights to non-humans amounts to one of the greatest evils government has ever committed. Companies and organizations need only those rights directly relevant to performing financial transactions. They don't need free speech, they don't need religion, they don't even need the right to petition the government for redress of grievances except for the purpose of enforcement of contractual obligations. Most other HUMAN rights don't apply to them for precisely the reason that we shouldn't allow incorporation - They refer to protection from conditions and penalties that have no meaning to any nonliving entity. Corporations can't seek happiness, you can't put a corporation in prison, they don't have "life or limb"s to put in jeopardy, they can't "be secure in their persons", and IMO they shouldn't have the right to own real estate, thus making it impossible to quarter soldiers in their "house".

I often disagree with the USSC, but this one will singlehandedly destroy any semblance of "fair" elections in the US. On the local scale, whatever business dominates an area will get their guy in; and on the national scale, if you thought we had weak independents before, just wait for 2012, when instead of outspending the indies by a mere 10 to 1, you'll see the major parties' candidates outspending Nader et al by literally billions.
posted by pla at 8:18 AM on January 21, 2010 [17 favorites]

Damn my spelling. I blame the anger.
posted by a robot made out of meat at 8:19 AM on January 21, 2010

As a kid, I never really "got" how Rome fell. I mean, here you have this colossus bestriding the Mediterranean, controlling all but the farthest reaches of Europe, with the best military and the moist advanced civic infrastructure in the world, and yet a bunch of smelly illiterate barbarians take it over.

Now reality has educated me, and I understand. Now I "get" it, and boy are we going to get it but good. SPQR.
posted by orthogonality at 8:20 AM on January 21, 2010 [18 favorites]

Corporate sponsorship for political candidates, Brown wins in MA, Sarah Palin is given air time to say things and people care, tea partiers matter!?!

I'm burrying my face in that coach this weekend, and hard-like.
posted by codacorolla at 8:20 AM on January 21, 2010

And since they won't be coordinating with the Brown campaign (who? us?), they can get as nasty as they like with Brown able to say "I don't have any control over their free speech."

Even further, since they won't be "coordinating" their ad campaign with Sen. Brown, those are fundraising dollars Sen. Brown doesn't need to raise or spend. It's win/win for criminally-minded businesses and corrupt politicians in the United States.
posted by Blazecock Pileon at 8:20 AM on January 21, 2010 [6 favorites]

ripley_: "Say what you will, but this is a victory for free speech."

Say what you will, but this is a victory for free lunch.

----

/throws up hands, starts looking real estate in Canada
posted by mwhybark at 8:21 AM on January 21, 2010 [4 favorites]

Say what you will, but this is a victory for free speech.

Not it's not, because it privileges the political speech of some individuals over others.

How's that? Well, if you're a CEO, you get to contribute to a candidate up to the maximum contribution caps for individuals, and you get to exceed those caps in your capacity as a representative of whatever corporate interests you represent.

In other words, CEOs and other leaders of formally incorporated interest groups now have more speech freedom than non-executives because they can circumvent the individual limits.

This is blatant unequal application of the law and privileges the speech rights of certain individuals over others. If you're a CEO, you now get to talk more and louder than ordinary citizens, effectively creating unequal protection under the law, systematically privileging the speech rights of some individuals more than others.
posted by saulgoodman at 8:21 AM on January 21, 2010 [21 favorites]

Well, the silver linings is that we can more readily publish lists of corporations that directly campaigned for the candidate we don't like, rather than dig through finance records to see which CEOs or board members donated money to the candidate or her PAC.

So, yay information? I guess?
posted by muddgirl at 8:22 AM on January 21, 2010 [1 favorite]

Babblesort : Each corporation gets one vote just like every other person. They get the same right as every other sociopath to vote as they see fit.

Every other sociopath doesn't have the ability to fork him/herself off into a thousand wholly-owned shell corps.

seventyfour : The dissent is a good read, though, small comfort.

The dissent almost always reads well, to the point that you have to wonder what idiots could possibly have disagreed with it.

Then you look at who most recently stacked the deck here, and after the wave of nausea passes, you just have to smile sadly and move on.
posted by pla at 8:22 AM on January 21, 2010 [8 favorites]

Free speech also applies to people and organizations you might not agree with... or at least it should.

Please define "organization" in such a way that it is not composed of individuals each of whom already has free speech.
posted by DU at 8:23 AM on January 21, 2010 [10 favorites]

Could we tone down the rhetoric a little?

I respectfully disagree. I would like to jack the rhetoric up a lot regarding this particular issue. I am very angry and do not feel like I have any way to influence the rotten turn things have taken. This is a terrible decision and a blatant disregard for the rights of actual individuals. Our country is turning to shit right in front of our eyes. What will it take for things to start heading in the right direction at this point? Torches and pitchforks? I don't think any of us know how to protest loudly and effectively any more, myself especially.
posted by theredpen at 8:24 AM on January 21, 2010 [31 favorites]

(2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Repeated for emphasis.
posted by [citation needed] at 8:24 AM on January 21, 2010 [2 favorites]

Is it possible to sue the Supreme Court?
posted by saulgoodman at 8:25 AM on January 21, 2010 [18 favorites]

golly but this ruling comes as a huge surprise! Too bad Pete Seeger has lost his singing voice.
posted by Postroad at 8:27 AM on January 21, 2010 [3 favorites]

Could we tone down the rhetoric a little?

I don't think it's evil to believe that spending money to advocate a certain position constitutes speech. You might not agree, but try to argue with something better than that.

No, actually I can't. We have been calmly acquiescing our way into corporate servitude for a long time now.

This decision essentially makes the playing field even more unequal. It hands corporations (who, as pointed out ad infinitum have no real responsibilities nor stellar track records as good citizens) nuclear-powered megaphones. This devalues my, and your, free speech rights. Corporations are NOT citizens. Citizens' rights need to take precedence.

This decision is wrongheaded, in the extreme.
posted by Benny Andajetz at 8:27 AM on January 21, 2010 [11 favorites]

(2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Wow. $1e6 per day directed towards Congress from the health insurance industry to get a bill that mainly benefits the health insurance industry doesn't even give the appearance of corruption. Speechless.
posted by DU at 8:27 AM on January 21, 2010 [6 favorites]

Has anyone seriously proposed a constitutional amendment stating that corporations are not considered individuals? That's our only chance, right? I'm so upset I can barely type.
posted by theredpen at 8:29 AM on January 21, 2010 [3 favorites]

n-ing parliboy. Exactly right.

When was the last time that you saw a corporation thrown in jail? At worst, they just cease to exist (e.g., bankruptcy/shut down/get bought out). The notion that corporate "rights" are equivalent to individual rights is a legal fiction that has to be revisited. (Actually, it needs to be just plain old visited, because the growth of the concept has pretty much always been under the radar and never tested in a frontal legal challenge).

It's one thing, and a necessary thing, to say that corporate property and contractual rights are equivalent to individual rights in those areas. But to say that corporations have free speech, freedom to assemble, and other non-financial, intangible rights equivalent to individual rights is something entirely different. The sheer size and concentration of corporate wealth renders almost meaningless the efforts of an individual (or even group of individuals) trying to express an alternative viewpoint to that broadcast by the corporate entity.
posted by webhund at 8:30 AM on January 21, 2010 [1 favorite]

Translation?

The Court doesn't agree on almost anything except (1) a vast majority agrees disclaimer and disclosure requirements are constitutional and (2) a slight majority agrees (i) that corporate political expenditures are protected by the first amendment and (ii) that campaign finance legislation doesn't meet a compelling need.

All it takes is for Kennedy to change his mind about (2)(ii) or for Scalia to retire or die (he turns 74 in about a month) before Obama's turn is up. This is a majorly contentious issue with no clear guidance from the court other than that it's contentious on the court too.

If Obama had half the sack FDR did he'd get Dems to fasttrack a statute expanding the size of the court to 11.
posted by jock@law at 8:30 AM on January 21, 2010

Um. No. First of all, money isn't speech, regardless of what the Supreme Court says. It's wrong on that issue.

Wrong? Says who? The Supreme Court said its legal. And of course money is speech.

Go ahead and say something. Did anyone hear you? Now buy a billboard, or an ad on radio.

It is ridiculous to think that a company can buy an ad to sell gasoline but another company can't buy an ad advocating the election of the guy who's pledged to end the war in Iraq. Or that consumer products companies can spend millions on TV ads convincing women they are too fat but they can't buy ads convincing women to vote for the candidate who's pledged to preserve their right to an abortion.

Oh, you don't think corporations are going to buy those kinds ads? That is precisely where Metafilter fails.

See, the reason most of you don't like this decision is because you think that corporations will buy ads for the other side, the side you don't like. And because you think this outcome will mean the other side wins, you are now arguing that the law is bad. That is undemocratic. You don't get to engineer the system to ensure yourself an outcome.

Think that SCOTUS is packed with too many Republican loyalists because they always vote in lockstep? Then why aren't you angry with the liberal judges who do the same thing? The problem isn't one side or the other, it's the monolithic approach that both of them take.

And the notion that corporations should be shut down if they break a law is insane. When all those people get laid off, who is going to provide them with an income and healthcare? You?
posted by Pastabagel at 8:30 AM on January 21, 2010 [15 favorites]

For me, the central constitutional issue (that the majority assholes on the court willfully ignore) is this: Why should I, as a CEO, get to direct more money to the political causes of my preference than I would were I acting as a private citizen?

Corporations are not citizens, they have no voting or free speech rights. People have free speech rights. It's always been the case that some are in a better position to exercise their speech rights, due to personal circumstances.

But now, some individuals are systematically allowed to exercise their free speech rights than others (since they can get around the individual caps by directing money from the organizations they represent to their preferred political causes).

This is the kind of decision that should provoke protest. We need to shut the court down completely; surround it with protesters and let no one in or out until this decision is reversed.
This is not an acceptable outcome, and the court needs to know that.
posted by saulgoodman at 8:31 AM on January 21, 2010 [1 favorite]

the reason most of you don't like this decision is because you think that corporations will buy ads for the other side, the side you don't like

I can see why you'd assume that, but what I'm more worried about is that corporations will buy ads that support candidates who support corporations, firming up this vicious cycle we're in. That does happen to be the other side, the side I don't like. But that's not the basis of my opposition.
posted by theredpen at 8:33 AM on January 21, 2010 [14 favorites]

Thanks again, Ralph Nader! You're right: there was no difference between Gore and Bush. Yup, Gore would have appointed Supreme Court justices that would have given corporations unlimited opportunity to run their own political ads. Heckuva a job, Ralphie!
posted by twsf at 8:33 AM on January 21, 2010 [11 favorites]

I don't think it's evil to believe that spending money to advocate a certain position constitutes speech. You might not agree, but try to argue with something better than that.

Okay, how about this. Suppose we boil 'speech' down to two things: communication and spending money. Now let's compare those and see if they seem the same.

Virtually everyone is inherently capable of communicating in some way: talking, signing, etc. Sure, some people can communicate more because they have abilities (e.g. writing), access to a platform (e.g. internet access), an audience (e.g. a TV show), or own special equipment (e.g. a printing press), but virtually everyone has some base level of ability to communicate.

But not everyone can spend money. There are lots of people with no money: the indigent, children, prisoners, etc. And there are many more with essentially no disposable income.

Incidentally, these are also particularly vulnerable groups traditionally in need of government protection. Contrast that with a corporation, which generally has money (or else it won't be a corporation for long) and has employees, shareholders, and customers to act in its interest. The corporation already has substantial government protection (that's the point of a corporation). There's no need to also give it the ability to directly engage in political speech.
posted by jedicus at 8:33 AM on January 21, 2010 [11 favorites]

Wow. $1e6 per day directed towards Congress from the health insurance industry to get a bill that mainly benefits the health insurance industry doesn't even give the appearance of corruption. Speechless.
posted by DU at 11:27 AM on January 21

On the other hand, corporations can't vote. So it could be a billion a day, but as long as 50.1% of the voters in that district don't like it, the candidate is out on their ass. Unless you are presupposing that the electorate is uninformed and wouldn't necessarily know that the bill is bad, or that there was an alternative. But the entire political system in the US is predicated on the assumption that this isn't the case.
posted by Pastabagel at 8:34 AM on January 21, 2010

Kennedy's really going to town as Defender of the First Amendment:

The censorship we now confront is vast in its reach. The
Government has “muffle[d] the voices that best represent
the most significant segments of the economy.” McCon-
nell, supra, at 257–258 (opinion of SCALIA, J.). And “the
electorate [has been] deprived of information, knowledge
and opinion vital to its function.” CIO, 335 U. S., at 144
(Rutledge, J., concurring in result). By suppressing the
speech of manifold corporations, both for-profit and non-
profit, the Government prevents their voices and view-
points from reaching the public and advising voters on
which persons or entities are hostile to their interests.
Factions will necessarily form in our Republic, but the
remedy of “destroying the liberty” of some factions is
“worse than the disease.” The Federalist No. 10, p. 130 (B.
Wright ed. 1961) (J. Madison). Factions should be checked
by permitting them all to speak, see ibid., and by entrust-
ing the people to judge what is true and what is false.

posted by Electric Dragon at 8:35 AM on January 21, 2010 [2 favorites]

In other words, CEOs and other leaders of formally incorporated interest groups now have more speech freedom than non-executives because they can circumvent the individual limits.

Interesting point, I hadn't thought about it that way.

Ideally these limits would be abolished so that the whole thing would be moot, but I'm a bit of an absolutist like that. Short of that happening, I can see why the limits might be reasonable according to your point.
posted by ripley_ at 8:35 AM on January 21, 2010

See, the reason most of you don't like this decision is because you think that corporations will buy ads for the other side, the side you don't like.

I don't want to speak for "most of us", but the reason I find it abhorrent is that corporations have the resources to drown out individual political discourse and the anonymity to not have any (natural) person held accountable for it. The political landscape is already dominated by too much money; the SCOTUS just rendered a decision that both accelerates that process and makes it virtually impossible to curtail.
posted by norm at 8:37 AM on January 21, 2010 [9 favorites]

It looks like Obama and the rest of the Democrats have missed their window of opportunity to make some real changes.

Obama is over. A president is strongest right after he's won an election. LBJ knew this, that's why he pushed the Great Society programs (Medicare, Voting Rights Act) through and was able to sign them six months after he beat Goldwater. Obama, to the contrary, has wasted his entire first year on pussy-footing around, missing deadlines, and begging for "bipartisanship". Now the Republicans know he has no teeth, while at the same time they use him as a boogeyman to scare and whip up Teabaggers.

People get on bandwagons, but to get the bandwagon, you have to be moving in some direction. People appreciate leadership, because we like to follow. Hell, we all followed Bush to Iraq and the Patriot Act. Yes, it was indiotic, but we all felt that at least we were moving forward after 9/11.

Obama's not providing leadership, the Democratic Senate isn't providing leadership, so people are voting for Republicans who at least promise to lead them somewhere.

Obama either leads, goes deep populist, emulates Reagan by blaming the opposition party for everything, and shows some teeth, or he goes home.

But honestly, I think his presidency is effectively over. Carter all over again.
posted by orthogonality at 8:39 AM on January 21, 2010 [27 favorites]

That is an astounding piece of rhetoric :"muffle[d] the voices that best represent the most significant segments of the economy"?

What's a democracy for?
posted by seventyfour at 8:39 AM on January 21, 2010

Why should I, as a CEO, get to direct more money to the political causes of my preference than I would were I acting as a private citizen?

Because as CEO, your job is to protect the interests of your company. You are responsible for the livelihoods of thousands of other people. If a change in law is going to cost your company business, that means layoffs or bankruptcy.

Also, this protects companies against politicians who may have "political causes of their preference" that apply only to corporations and which would motivate them to act against companies. Imagine a right-wing politician who rails against the immorality of Hollywood. So he gets elected and starts acting against them in a way that destroys their business and the livelihood of their employees. At least this way, the company's management has an opportunity to defend the interest of the company.
posted by Pastabagel at 8:41 AM on January 21, 2010 [3 favorites]

See, the reason most of you don't like this decision is because you think that corporations will buy ads for the other side, the side you don't like. And because you think this outcome will mean the other side wins, you are now arguing that the law is bad.

Uhhh...no. Corporations have historically not had the welfare of humans at the top of the list, so I don't want them influencing elections that affect those humans.

So it could be a billion a day, but as long as 50.1% of the voters in that district don't like it, the candidate is out on their ass.

lolnaive
posted by DU at 8:41 AM on January 21, 2010 [11 favorites]

twsf said: Thanks again, Ralph Nader! You're right: there was no difference between Gore and Bush. Yup, Gore would have appointed Supreme Court justices that would have given corporations unlimited opportunity to run their own political ads. Heckuva a job, Ralphie!

You're seriously going to blame this on Nader? Jesus.
posted by purephase at 8:41 AM on January 21, 2010 [8 favorites]

Oh, you don't think corporations are going to buy those kinds ads? That is precisely where Metafilter fails.

Name one Fortune 500 company whose CEO has said we should end the wars and defend pro-choice laws on the books. Because otherwise that is precisely where Pastabagel fails.
posted by Blazecock Pileon at 8:43 AM on January 21, 2010 [9 favorites]

Because as CEO, your job is to protect the interests of your company. You are responsible for the livelihoods of thousands of other people. If a change in law is going to cost your company business, that means layoffs or bankruptcy.

Yeah, because CEOs are so actively concerned for the individual worker's welfare! You can really see that these days. As long as that worker lives in India. The CEOs don't give a rat's ass about their workers' livelihoods! If you don't see that, you need to look again. The ideal CEO would think like that, and it would be a smart economic decision in the long run. But they are more concerned with bottom-line profits and lining their own pockets. Come on, really?
posted by theredpen at 8:44 AM on January 21, 2010 [8 favorites]

It was not a 5-4 decision. It was a 5-8-2-3-2-4-1 decision. This issue is anything but settled.

What does this mean?
posted by Perplexity at 8:44 AM on January 21, 2010

This strikes me as one of those things where we will see a lot of low level impact early on, but nothing really obviously game changing. And then in a couple of years, someone will do something really spectacular with it (in the great and terrible sense of the word) and the nation will collectively blink and wonder how the hell something so obviously wrong could be legal, at which point there will be much scrambling to correct this mistake.

Of course, at that point it will be too late, because the Cola wars will have already gone nuclear and much of the mid-west will be an irradiated wasteland.
posted by quin at 8:44 AM on January 21, 2010 [3 favorites]

At least this way, the company's management has an opportunity to defend the interest of the company.

Sorry, but no. In a just society, corporations have fewer rights than people.
posted by one more dead town's last parade at 8:45 AM on January 21, 2010 [2 favorites]

First of all, money isn't speech, regardless of what the Supreme Court says.

It's not just speech, it's "the press". Not "the press" in the current metaphorical sense of "a bunch of guys paid by Rupert Murdoch & competitors who could already spend unlimited amounts of money on political propaganda by calling themselves journalists", but in the older metaphorical sense of "an expensive piece of capital used to mass-produce communications". The authors of the Bill of Rights anticipated the possibility that, even if free speech was protected in its "one person shouting on the street corner" aspect, it would be small consolation unless free speech was also protected in the "many people pooling their money to produce and distribute more expensive creations" sense.

There is a lot that's screwed up about corporate funding of politics, but to really fix it we'll need to get at the root causes. As I alluded to above with the Rupert Murdoch Exception, just attacking the symptoms can have ugly side effects.
posted by roystgnr at 8:45 AM on January 21, 2010 [1 favorite]

theredpen: "Has anyone seriously proposed a constitutional amendment stating that corporations are not considered individuals? That's our only chance, right?"

That - in conjunction with public financing of elections.

Without both of those, I think any progressive energies channeled into the political system will be simply squandered.
posted by Joe Beese at 8:46 AM on January 21, 2010 [4 favorites]

Because as CEO, your job is to protect the interests of your company. You are responsible for the livelihoods of thousands of other people. If a change in law is going to cost your company business, that means layoffs or bankruptcy.... At least this way, the company's management has an opportunity to defend the interest of the company.

So a company is like a little duchy, and CEO is like a feudal lord, protecting his peasantry?

And those lords (or their appointed representatives) get together, in like a Parliament, to tell the King what to do? (And appoint the bishops and judges in their duchies?)
posted by orthogonality at 8:47 AM on January 21, 2010 [17 favorites]

Thank god the American electorate is sophisticated enough to see through all the lies that corporations tell them.
posted by Flashman at 8:50 AM on January 21, 2010 [2 favorites]

On the other hand, corporations can't vote. So it could be a billion a day, but as long as 50.1% of the voters in that district don't like it, the candidate is out on their ass. Unless you are presupposing that the electorate is uninformed and wouldn't necessarily know that the bill is bad, or that there was an alternative. But the entire political system in the US is predicated on the assumption that this isn't the case.

If political speech is not relevant to the outcome, then why is it so important for corporations to have the right to it? If corporations didn't think they could influence the outcome by spending, they wouldn't bother.

And I disagree that the US political system assumes an informed electorate that can't be swayed by political speech. People don't spring forth fully formed with a political ideology in their minds. Their views are formed over time by the political speech of others.
posted by jedicus at 8:50 AM on January 21, 2010 [1 favorite]

Y'see, there's a reason our founding fathers made it illegal to incorporate in the early part of our history - we're seeing it happen again! East India Co, Hudson Bay Co - Meet Exxon/Mobil, Goldman-Sachs. I think I'll give up on national politics and focus closer to home - we might have a chance at beating this thing back if we start there.
posted by dbmcd at 8:50 AM on January 21, 2010 [4 favorites]

If you're a CEO, you now get to talk more and louder than ordinary citizens, effectively creating unequal protection under the law, systematically privileging the speech rights of some individuals more than others.

This is kind of an interesting argument; I wonder if it would fly. Really the people who are getting a boost are not the CEOs, it's the members of the boards of directors. They're the ones that actually make decisions on behalf of the corporation; they may delegate authority to a CEO, and often the CEO is on the board, but not all CEOs have blanket authority to run a corporation however they happen to want to. The buck stops with the shareholders who comprise the board, and have the final say on the CEO's power and the direction the company goes in.
posted by Kadin2048 at 8:51 AM on January 21, 2010

Is it possible to sue the Supreme Court?

Can always impeach 'em. But who's gonna get THAT ball rolling?
posted by Max Power at 8:53 AM on January 21, 2010

It certainly seems that the transition of the US to a state governed by the Corporations and for the Corporations is now complete. It is certainly an exciting experiment. If only USians were half as suspicious of big Corporations as they are of big Government.
posted by unSane at 8:54 AM on January 21, 2010 [4 favorites]

It was not a 5-4 decision. It was a 5-8-2-3-2-4-1 decision. This issue is anything but settled.

Translation?

It's a complex decision and different Justices have joined different parts. (Please note, IANAL, nor am I even American, so my analysis is probably wrong somewhere.)

The main holding, that 441b's restriction on corporate finance is struck down, is 5-4 (Kennedy, Scalia, Alito, Roberts, Thomas).

The disclosure and disclaimer requirements, however, have been upheld by 8-1 (Thomas the only dissenter)

Roberts (with Alito concurring) separately discusses stare decisis and judicial restraint (addressing the part of the dissent that suggests the ruling could have been decided on narrower grounds without striking down the statute).

There is a difference between judicial restraint and judicial abdication. When constitutional questions are "indispensably necessary" to resolving the case at hand, "the court must meet and decide them."

(So much for the balls and strikes, eh, Chief Justice?)

Scalia (with Roberts concurring and Thomas concurring in part) writes a separate opinion to slap the minority down on the part of their dissent addressing rights of corporations:

Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are.

(Scalia's emph.)
posted by Electric Dragon at 8:58 AM on January 21, 2010

purephase: "You're seriously going to blame this on Nader? Jesus."

I used to think the "Alger Hiss was a commie!" crowd's record for grudge-holding would never be broken. But these Nader-haters are making a real run at it.

Would you please explain it to them, Mr. Floyd?

Look, I know it's not easy. I was born and raised a Yellow Dawg Democrat myself, and remained one for most of my life. I know what it's like to be hardwired for supporting Democrats, come hell or high water, giving them every benefit of the doubt, turning a blind eye here, making a furious rationalization there. These tribal loyalties are very difficult to lay down; it really can feel like turning your back on your family. And of course the belligerent, bellicose, willfully ignorant Republicans are loathsome and dangerous.

But there comes a time when you must face the truth – or be lost to truth forever. There comes a time to recognize that the Democratic Party and Republican Party are part of the same corrupted entity. There comes a time to recognize that the Democratic Party's agenda is not only ruinous in itself, unworthy of the support of anyone who cares about justice, peace, liberty and the pursuit of happiness – it is also empowering those very same loathsome and dangerous Republicans. There comes a time for even the most partisan tribalist (and I have been one) to accept the hard judgment of reality: that the Democratic Party is part of the problem, not the solution.
posted by Joe Beese at 9:01 AM on January 21, 2010 [3 favorites]

i'm still face down on the coach from yesterday

I'm shocked that Coach can hold out that long given his age
posted by offtheroad at 9:02 AM on January 21, 2010

Netflix is going to wonder why The Pelican Brief keeps making it into my queue.
posted by troybob at 9:03 AM on January 21, 2010

Joe Beese: Do you really think Gore would have nominated Roberts and Alito to the Supreme Court? Note which way Sotomayor voted.
posted by Electric Dragon at 9:05 AM on January 21, 2010

This on a day that Obama announces he's really getting tough on wall street (CJR).
posted by JoeXIII007 at 9:05 AM on January 21, 2010

And of course money is speech. Go ahead and say something. Did anyone hear you? Now buy a billboard, or an ad on radio.

No. Money is an instrumentality of speech. It can make your speech more effective. You know what else would make my speech more effective? Killing people who don't listen to me. Expressive conduct is treated like speech in some cases, but not all. The question is whether the prohibition would "be justified without reference to the content of the regulated speech." Boos v. Barry, 485 U.S. 312, 320 (1988).

While the limitations on corporate spending here were (I believe) not viewpoint neutral, viewpoint neutrality is a requirement of limitations on speech, not mere expressive conduct. And the limitations here were definitely content-neutral.

Hopes for the future:
(1) A future court restores the distinction between speech and expressive conduct in a way that isn't blatantly political
(2) A future court rules that campaign finance is a political question
(3) A future court rules that federal interference, short of Congress's deliberate Commerce Clause preemption, with state-law commercial legal fictions violates federalism
(4) A viewpoint-neutral reenactment of this statute (nobody can spend over $x)
posted by jock@law at 9:06 AM on January 21, 2010 [9 favorites]

I really have nothing coherent to say. Just speechless and seething with anger over this decision.
posted by naju at 9:08 AM on January 21, 2010 [3 favorites]

Some people says this ruling goes too far. But I say it doesn't go far enough.

Give corporations the vote! For too long, corporations have been denied their rights as people to influence elections. Today's supreme court decision strikes a blow in their favor by letting them spend unlimited money on elections. But is that enough? They are still being denied the vote, the most fundamental right in any democracy.... It's time time for corporate sufferage! Give corporations the vote! Microsoft for Senate! Walmart for President!
posted by shaun uh at 9:08 AM on January 21, 2010

Because as CEO, your job is to protect the interests of your company.

As a parent, my job is to protect the interests of my family and children. So?

It shouldn't make a damn bit of difference what my "job" is whether or not I get equal protection of my basic individual constitutional rights.

That's the lamest, most pointedly absurd rationale I think I've ever heard.
posted by saulgoodman at 9:15 AM on January 21, 2010 [11 favorites]

It amazes me how 55.56% of the Supreme Court spends 90% of its time holding seances with the founding fathers and still come out with decisions like this.
posted by troybob at 9:19 AM on January 21, 2010 [12 favorites]

"I would like to see a law passed that corporations in violation of the law be shut down for the period in which an individual would be incarcerated."

Port of Los Angeles? Union Pacific? NYSE? Pfizer? Toyota? Your bank? It should be obvious why this won't work.

"Since corporations are people, how about we take away their right to spend money on politics but in return grant them the right to vote. Each corporation gets one vote just like every other person. They get the same right as every other sociopath to vote as they see fit."

Effectively making the cost of a vote the fee for incorporating in the relevant jurisdiction. Heck I'd imagine a business set up to sell blocks of votes on any particular issue could make a lot of money.
posted by Mitheral at 9:22 AM on January 21, 2010 [2 favorites]

I'd be curious as to who exactly thought that money wasn't corrupting our political process before.

Since "(2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."
posted by jefeweiss at 9:24 AM on January 21, 2010

This is a small victory for the fundamental human rights of corporate persons. But I won't consider the struggle for liberty to be over until I'm allowed to marry Georgia Pacific.

At this point the corporations are engaging in inappropriate sexual relations with you without benefit of marriage.

Why marry when they're fucking you already?
posted by mephron at 9:25 AM on January 21, 2010 [3 favorites]

Effectively making the cost of a vote the fee for incorporating in the relevant jurisdiction. Heck I'd imagine a business set up to sell blocks of votes on any particular issue could make a lot of money.

I think we've stumbled on the answer to all our economic troubles. Vote trading markets! A new economic bubble! Hurrah, we're all free now!
posted by saulgoodman at 9:26 AM on January 21, 2010

Thank you, Redneck America, for allowing George W. to create a conservative Supreme Court that is going to fuck us for years.
posted by zzazazz at 9:29 AM on January 21, 2010 [1 favorite]

One possible outlet for your anger: give to Public Citizen, which is spearheading a response to this decision in the form of legislation designed to hamstring corporations in their political speech by requiring them to have all messages/contributions approved by their shareholders.

Another problem with this is that most major corporations are mostly owned by a few rich people and other corporations. It would still put too much influence into the hands of a few people. And how would this work when the approval needs to be passed down to a shareholder that is another corporation? Would the decision go to that corporations shareholders etc? Recursion? What happens when corporation A owns a stake in corporation B and vice versa? Loops? It would be extremely complicated. It might hamstring the corps a bit, but I think they'd find a way around it.
posted by no_moniker at 9:29 AM on January 21, 2010 [1 favorite]

DONALD But posted it be; what’s done cannot be undone.
WALTER They shall unpost it, by my life!

I wish they could "fucking unpost it." Fortunately/unfortunately, I am too law-abiding to even consider violence. I guess I could always call my new senator and complain. Or maybe I'll just watch that speech from Network again. Worse than bad; they're crazy!
posted by theredpen at 9:29 AM on January 21, 2010

I'm going to take issue with something in particular:

(2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Is there data to back this assertion? This is a predictive, testable statement, one that should have historical data and actual science behind it.
posted by effugas at 9:32 AM on January 21, 2010 [12 favorites]

Electric Dragon: "Do you really think Gore would have nominated Roberts and Alito to the Supreme Court? Note which way Sotomayor voted."

The post that began this said:

Thanks again, Ralph Nader! You're right: there was no difference between Gore and Bush.

I'm only addressing the unbearably tired shibboleth that Nader cost Gore the election. If Gore hadn't lost his own fucking state by 4 percentage points running against a chimpanzee in a business suit, no one but political historians would give a shit what the vote totals were in Florida.

Alternate history fantasies about the Gore administration don't really interest me.
posted by Joe Beese at 9:35 AM on January 21, 2010 [11 favorites]

And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Is there data to back this assertion? This is a predictive, testable statement, one that should have historical data and actual science behind it.

Well, here's one data point for you: this member of the electorate has lost faith in democracy on this account.

That proves the assumption is false, legally invalidating the decision, right? Phew! We just dodged a bullet! Turns out, the ruling isn't legally binding because the premises of the legal reasoning used to justify the decision are demonstrably false!
posted by saulgoodman at 9:35 AM on January 21, 2010 [1 favorite]

In other words, congress and other governmental entities: Ignore this decision. What's the court gonna do about it? Call in the military?
posted by saulgoodman at 9:37 AM on January 21, 2010 [1 favorite]

this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

Well I'm sorry, but that's not only testable, but false on its face. Independent expenditures absolutely do give rise to the appearance of corruption. If a Corporation X spends a million bucks to get Candidate A into office, with the benefits that accrue thereto, and Candidate A then performs some act which benefits Corporation X and disadvantages Corporation Y and Z, it absolutely appears to be corruption.

I mean, if that doesn't "appear" to be corruption, what would the difference be from something that does "appear" to be corruption?
posted by unSane at 9:40 AM on January 21, 2010 [6 favorites]

I like that they decided that there's no way anyone could ever think that corporations buying and selling politicians could cause Americans to lose faith in their electoral system.

I'd also like to know, given that the Supremes have just declared that money is speech, how any laws prohibiting bribery or prostitution can still stand?

"No your honor, I didn't bribe that policeman, I just exercised my Constitutionally protected right to free speech (God Bless America), by giving him $500. If he, of his own free will and in no way influenced by my speech, then chose to taint evidence linking me to a murder, well, that's hardly my fault."

Or

"Of course I didn't pay that woman for sex, I simply decided to exercise my free speech rights and give her a few bucks. That she then immediately gave me a blowjob is completely and totally unrelated.

"That speakers may have influence over or access to women who engage in prostitution does not mean that these speakers are purchasing sex."

jock@law Can you answer a question I've had for a while?

It looks as if the Supremes are deciding that corporations are people, and entitled to all the rights of people. The 14th Amendment has been used to justify some of this IIRC.

Given that slavery is the ownership of one person by another, how is it possible for corporations to simultaneously be people, in the legal sense, and for the ownership of corporations not to be illegal under the 13th Amendment?

I'm sure there's some line of legal reasoning I'm missing, but it seems really odd to me that the Supremes would rule that corporations get 1st Amendment rights, but aren't protected by the 13th Amendment.
posted by sotonohito at 9:45 AM on January 21, 2010 [13 favorites]

Excerpts from Stevens's dissent. Taken from here.

* Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

* The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

* Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.

* The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

* The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907....We have unanimously concluded [in 1982] that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process"...and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation...The Court today rejects a century of history when it treats the distinction between corporate and individual campaignspending as an invidious novelty born [in a 1990 opinion].

* The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.
posted by seventyfour at 9:46 AM on January 21, 2010 [6 favorites]

81.7% of Americans Say Political Corruption Played a “Major Role” in Financial Crisis
posted by jefeweiss at 9:47 AM on January 21, 2010 [5 favorites]

Just to remind people who we're dealing with, the original name of Citizens United was Citizens United Not Timid (CUNT). The original plan was to print up millions of t-shirts with the group's name on them, should Hillary be the nominee.
posted by scalefree at 9:48 AM on January 21, 2010

Mitheral, I understand why this:

"I would like to see a law passed that corporations in violation of the law be shut down for the period in which an individual would be incarcerated."

would not work in the real world. However, in essence it says we can not hold large corporations responsible for their actions if it will ruin the corporation. They are just too big to fail.

My main point is that if a corporation cannot be held to the same level of responsibility as an individual, they should not be given the same rights.

On a side note, can a individual who is a citizen of another country start a corporation in the US (or give money to a US citizen to start a corporation) and run ads for one candidate?
posted by batou_ at 9:50 AM on January 21, 2010 [2 favorites]

I'd also like to know, given that the Supremes have just declared that money is speech, how any laws prohibiting bribery or prostitution can still stand?

Holy shit, that's right. And if I buy pot, I'm just using my free speech rights to express support for the political cause of marijuana legalization.

Maybe it's time for a class action lawsuit on behalf of anyone behind bars for exercising their constitutionally protected free speech rights.
posted by saulgoodman at 9:52 AM on January 21, 2010 [1 favorite]

.
posted by Pirate-Bartender-Zombie-Monkey at 9:53 AM on January 21, 2010

I try to be rational on stuff like this, but I have no choice but to agree with you.

See, this is the kind of defeatist bull shit that makes our side so ineffective.

Just today, Obama announced plans to effectively reintroduce Glass-Stengal type separation of investment banks and deposit banks and to impose major additional regulations on the activities of the financial sector, including limiting the size of financial institutions.

Now is the time to support those effort and fight for the reforms he's proposing, not throw up our hands and skulk off to the corner to wait for death.

It's time to redouble--even triple the push for the reforms needed--not give up.
posted by saulgoodman at 9:58 AM on January 21, 2010 [5 favorites]

effugas: Basically they're taking a narrow view of corruption as a precise quid pro quo of "I give you the money and in exchange you pass this bill." and the case of "You happen to be on my side already so I'll give you the money/run a bunch of ads about how great you are" is perfectly legitimate and not at all corrupt (according to the ruling).

The dissent makes precisely the same point as you do:

The majority’s rejection of the Buckley anticorruption rationale on the ground that independent corporate expenditures “do not give rise to [quid pro quo] corruption or the appearance of corruption,” ante, at 42, is thus unfair as well as unreasonable. Congress and outside experts have generated significant evidence corroborating this rationale, and the only reason we do not have any of the relevant materials before us is that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had abandoned. The Court cannot both sua sponte choose to relitigate McConnell on appeal and then complain that the Government has failed to substantiate its case. If our colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District Court with instructions to commence evidentiary proceedings.

posted by Electric Dragon at 9:59 AM on January 21, 2010 [5 favorites]

The Business Should Mind Its Own Business Act

The Corporate Propaganda Sunshine Act

The Defund the Crooks Act

The End Political Kickbacks Act of 2009

H. R. 4433 To make the antitrust laws applicable to a political committee

H. R. 4435 To amend the Securities Exchange Act of 1934 to prohibit any national securities exchange from effecting any transaction in a security issued by a corporation unless the corporation's registration with the exchange includes a certification that the corporation currently is in compliance with the provisions of the Federal Election Campaign Act of 1971 governing contributions and expenditures by corporations which were in effect with respect to elections held during 2008.

Discuss.

posted by scalefree at 10:00 AM on January 21, 2010 [11 favorites]

XQUZYPHYR: "I'm very happy for Lilly Ledbetter. Good on her. That wasn't the cornerstone of his presidential platform. That it's his "biggest accomplishment" so far on annoying message boards isn't laudable; it's evidence that he's a fucking failure."

Nader-ite! Firebagger! Pony-wisher!
posted by Joe Beese at 10:01 AM on January 21, 2010

If we're going to discuss laws to manage this mess we should probably start with the ones that've already been introduced into Congress. For example these, that Rep. Alan Grayson introduced last week:

Man, Grayson kicks ass! I really like this guy. Too bad we don't have more of him.
posted by saulgoodman at 10:03 AM on January 21, 2010

Pastabagel wrote: "And the notion that corporations should be shut down if they break a law is insane. When all those people get laid off, who is going to provide them with an income and healthcare? You?"

I just want to point out that this is actually a pretty good argument for never sending wealthy people to jail, ever.

Actually, if I'm not mistaken, this is similar to an argument advocated by ancient monarchists in favor of royal and noble immunity from prosecution (.i.e, thousands of peasants count on the Duke for survival, so executing the Duke for killing his wife would be harmful to the Kingdom).

Feudalism: You're living in it.
posted by Avenger at 10:12 AM on January 21, 2010 [39 favorites]

"would not work in the real world. However, in essence it says we can not hold large corporations responsible for their actions if it will ruin the corporation. They are just too big to fail."

Not so much to big to fail but that there are small and large scale natural monopolies controlled by corporations that innocent people depend on. If my credit union gets shutdown for six months because of an accounting violation it's not a catastrophe for the country but it sure is for me.

"My main point is that if a corporation cannot be held to the same level of responsibility as an individual, they should not be given the same rights"

Total agreement.

"On a side note, can a individual who is a citizen of another country start a corporation in the US (or give money to a US citizen to start a corporation) and run ads for one candidate?"

This is a good question.
posted by Mitheral at 10:14 AM on January 21, 2010 [1 favorite]

I believe Congress has the authority to impeach sitting justices for not satisfactorily carrying out their constitutional duties.

Now is the time to start collecting petitions to impeach Scalia and possibly others in the majority on this case. Scalia in particular has shown wanton disregard for the intent of constitutional protections of civil liberties, not only in this matter but in many, many others (for example, his willfully obtuse argument that the de facto guilt or innocence of citizens facing the death penalty should have no legal bearing on the prosecution of the death penalty).
posted by saulgoodman at 10:17 AM on January 21, 2010 [3 favorites]

Some people says this ruling goes too far. But I say it doesn't go far enough...Give corporations the vote!

You're not going far enough! Think of all the money we could save by just doing away with the farce of staging elections all together and letting the corporate boards simply hand-pick the political leaders they want. We're not all that far from it now, so let's go all the way, America!
posted by briank at 10:18 AM on January 21, 2010 [4 favorites]

Scalia in particular has shown wanton disregard for the intent of constitutional protections of civil liberties

Don't be ignorant. Scalia is wrong, but he's not impeachably wrong. Only an ignoramus would go after Scalia instead of Clarence let's-throw-out-all-our-commerce-clause-jurisprudence-without-regard-for-stare-decisis-and-i'm-gonna-dissent-from-upholding-antifraud-measures-in-election-law Thomas.
posted by jock@law at 10:21 AM on January 21, 2010

Anyone in NE Georgia know where I can get any coach? I've lost all my coach connections due to adulthood and real-jobbedness, and now I'm coachless. I sure would like some coach right about now, though.
posted by staggering termagant at 10:23 AM on January 21, 2010

The Year of the Whopper will probably be a bit of a rough transitional period, but you'll see things turn around in the Year of the Tucks Medicated Pad. By the time of the Year of the Depend Adult Undergarment everyone will wonder what all the fuss was about.
posted by Drastic at 10:24 AM on January 21, 2010 [11 favorites]

Don't be ignorant. Scalia is wrong, but he's not impeachably wrong.

So you think it's sound and good-faith legal reasoning to hold that whether or not someone is actually guilty of a crime they're being put to death for is guilty should have no bearing on whether they're put to death?

I'm sorry, but that position alone makes Scalia a fraud.
posted by saulgoodman at 10:25 AM on January 21, 2010 [3 favorites]

Also face-down on the coach tonight, thanks to the Supremes and my newly red town.
posted by theredpen at 10:27 AM on January 21, 2010

I'm sorry, but that position alone makes Scalia a fraud.

I take that back.

Scalia is worse than a fraud.

He's an enemy of the people.
posted by saulgoodman at 10:27 AM on January 21, 2010 [1 favorite]

But sure, the reality is, it's politically impossible to impeach Scalia. Thomas would be easier.
posted by saulgoodman at 10:31 AM on January 21, 2010

The majority in this opinion has acted outside the scope of its authority and this decision is void ab initio.

I don't normally go around quoting J@L, but this is fucking-A right.
posted by Civil_Disobedient at 10:31 AM on January 21, 2010 [3 favorites]

If we're going to discuss laws to manage this mess we should probably start with the ones that've already been introduced into Congress. For example these, that Rep. Alan Grayson introduced last week:

Man, Grayson kicks ass! I really like this guy. Too bad we don't have more of him.

Although Alan Grayson now represents a district near Orlando, he really makes me proud to be from the Bronx.
posted by deadmessenger at 10:32 AM on January 21, 2010

You're a thinker, saulgoodman, and a liberal. And you live in Tallahassee (like myself). I'm beginning to wonder if I've ever met you.

Also, our username is the same name as a character from my favorite novel. So there's that.
posted by grubi at 10:34 AM on January 21, 2010

This ruling is an absolute unmitigated disaster for America as we know it. It formalizes and solidifies into law the now near total corporate control of the political process. It's an absolute travesty. And as usual Feingold is one of the few people in a position of power to articulate how bad this is:

Senator Russ Feingold of Wisconsin, an author of the McCain-Feingold campaign finance law, called the ruling “a terrible mistake.”

“Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns.”

As someone wrote on the NYT thread:

Decisions like this, in times like these, are how revolutions begin.

See also:

Activists fear that the court's five-justice conservative majority, "change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending." And they have been organizing to challenge the ruling in Congress and with proposals to amend the U.S. Constitution in a manner that would protect the democratic discourse from being overwhelmed by corporate spending. The court may not go as far as democracy campaigners fear.

But U.S. Senator Russ Feingold, the Wisconsin Democrat who has been in the forefront of campaign-finance reform efforts for the better part of two decades, is worried.

"This would be in my view, a lawless decision from the Supreme Court," says the senator who gave his name to the McCain-Feingold law. "Part of me says I can't believe they'll do it, but there's some indication they might, and that means the whole idea of respecting the previous decisions of the Supreme Court won't mean anything anymore."

A lawyer who chairs the Constitution Subcommittee of the Senate Judiciary Committee, Feingold notes with regard to controls on corporate campaigning: "These things were argued in 1907, when they passed the ban on corporate treasuries. It was argued in 1947, Taft-Hartley did this. The Supreme Court has affirmed over and over again that it's not part of free speech that corporations and unions can use their treasuries (to buy elections)."

If the court does overturn both law and precedent to advance a corporate agenda, Feingold says, "It's just an example of activism, and legislating by a court, if they do this."
posted by HP LaserJet P10006 at 10:40 AM on January 21, 2010 [5 favorites]

So you think it's sound and good-faith legal reasoning to hold that whether or not someone is actually guilty of a crime they're being put to death for ~~is guilty~~ should have no bearing on whether they're put to death?

No. Neither does Scalia. He and I both agree, however, that it is not the Supreme Court's place to decide questions of fact. It is a absolutely fundamental principle of American constitutional law that the Supreme Court's original jurisdiction is limited. If you don't like it, go back in time about two hundred years and take it up with Chief Justice Marshall. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Or do you wanna impeach him too?
posted by jock@law at 10:44 AM on January 21, 2010

How far do people think Grayson's bills go towards containing the damage of this decision? Look beyond the (admittedly awesome) titles, read the text of them & see what you think. Also: can any of them be passed?
posted by scalefree at 10:45 AM on January 21, 2010

I'm beginning to wonder if I've ever met you.

This is a topic for another time and place, of course, but maybe a Tallahassee MeFi meetup is in order somewhere down the line...
posted by saulgoodman at 10:45 AM on January 21, 2010

Obama announced plans to effectively reintroduce [Glass-Steagall]...

Unfortunately, even a McCain-Palin administration would have done the much the same. There's lots of sentiment toward it amongst older Conservatives. And even the Republicans couldn't have gotten away with doing nothing at all after the collapse.

Plus, it would have given them a reason to blame it all on Clinton!

Glass-Steagall was only repealed in 1999. Even the Republicans with their magical thinking couldn't help but notice that they removed the sprinkler system only a short time before the building burned down...
posted by lupus_yonderboy at 10:47 AM on January 21, 2010

Smarter, more qualified people than I disagree with you, too, so please recognize this as a legitimate difference of opinion and don't be so quick to tar me as "ignorant." I'll extend the same courtesy to you in return.
posted by saulgoodman at 10:47 AM on January 21, 2010

Glass-Steagall was only repealed in 1999.

(heh, what'd i call it? glass-seagull or something? d'oh!)
posted by saulgoodman at 10:49 AM on January 21, 2010

Decisions like this, in times like these, are how revolutions begin.

I'm not sure that most people really appreciate how much damage the right-wing Supreme Court did to our personal liberties today.
posted by Blazecock Pileon at 10:49 AM on January 21, 2010 [9 favorites]

Feel free to label me ignorant for not knowing the proper spelling of Glass-Steagall, though.
posted by saulgoodman at 10:50 AM on January 21, 2010

The bottom line is that the Republicans have stacked the court.

When he was sworn in, John Roberts was the youngest Chief Justice in over 200 years.
The average age of Chief Justices since 1802, at the time, of swearing in, is 61 years, 154 days. Roberts was 50 years, 8 months. The second youngest Chief Justice in the last 200 years was Melville Fuller, appointed by Grover Cleveland at age 55 years and nearly 8 months (five years older).

When Clarence Thomas was sworn in, he was the second youngest justice in 150 years. He was wholly unqualified. The Anita Hill controversy helped people focus away from his lack of qualifications and turned his confirmation into "did he or didn't he?" (Or should he be presumed innocent).

Factor in life expectancy and these are the youngest ever.

My personal philosophy is a combination of believing in people and acknowledging Machiavelli. The majority of people are basically good - but cheating wins and the worse rise to the top.

Republicans don't play fair. Not playing fair (stealing from the bank during Monopoly) wins.
posted by dances_with_sneetches at 10:52 AM on January 21, 2010 [4 favorites]

The majority in this opinion has acted outside the scope of its authority and this decision is void ab initio.

Having read the decision, I think you're wrong. It's not that it's outside its authority, it's that the ruling is based on two long standing and dubiously decided propositions of law.

1. Corporations are people.
2. Money is speech.

The former is a weird legal oddity that goes back to the late 1800s, and as our buddy Uncle Cecil points out, the original case that it was based on is a pretty weak precedent, to say the least. Unfortunately, the moneyed interests have been riding this particular pony now for well over a hundred years. At least now basic workplace safety laws are no longer getting overturned on equal protection grounds, so there is that.

The latter is pretty weird, too. Buckley v. Valeo (1975) first put forth this odd coupling and made the laughable argument that the amount of a war chest is basically commensurate with the popular support of a particular candidate. But if you combine the two, and hold that corporations deserve all the rights of a person and that the first amendment protects spending money on political campaigns, you get an result that borders on the absurd: corporations just were handed almost unfettered ability to spend what they'd like on influencing elections, and the borders of that new right have yet to be defined.

How can courts uphold campaign contribution limits given this holding? Does McCain-Feingold have any chance of survival? Corporations have been banned from direct candidate contributions for over a century now. Can that possibly survive? The SCOTUS just explicitly rejected the distortion argument here, so it's not going to save these laws. Reality tells me, though, that the US political system, already horribly distended by the plutocrats' dollars, likely just went over the precipice.
posted by norm at 10:58 AM on January 21, 2010 [2 favorites]

I, for one, welcome our new Jennings & Rall overlords.
posted by one more dead town's last parade at 11:09 AM on January 21, 2010

Political donations should be limited to voters.

also:

THIS IS MY SURPRISED FACE.
posted by blue_beetle at 11:11 AM on January 21, 2010

Given that slavery is the ownership of one person by another, how is it possible for corporations to simultaneously be people, in the legal sense, and for the ownership of corporations not to be illegal under the 13th Amendment?

Very good question. Anyone have any answers?
posted by Fuzzy Monster at 11:11 AM on January 21, 2010 [4 favorites]

Given that slavery is the ownership of one person by another, how is it possible for corporations to simultaneously be people, in the legal sense, and for the ownership of corporations not to be illegal under the 13th Amendment?

Very good question. Anyone have any answers?

Corporations aren't actually people. They have some of the rights as people (free speech, right to contract, right to sue).
posted by seventyfour at 11:16 AM on January 21, 2010 [1 favorite]

Surely, this.
posted by regicide is good for you at 11:17 AM on January 21, 2010

Justice John Paul Stevens, in a stinging dissent written for the minority, argues that the right wing of the court has engaged in a brazen act of activism--and has done so to award corporations more legal rights than they have previously been afforded:

"[...] Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. [...] The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.[...]"
posted by HP LaserJet P10006 at 11:17 AM on January 21, 2010 [1 favorite]

If anyone would mind answering this question -- which other republics or democracies allow industry to spend on politics like this (short of direct contributions) and which don't? I'm just trying to get a grasp on this development and try to figure out what effect this has had elsewhere. Is this unprecedented for this type of government (yeah, not counting Axis Italy and that kind of thing) or has it been done elsewhere?
posted by crapmatic at 11:18 AM on January 21, 2010 [1 favorite]

Snowe disagrees with decision.
posted by billysumday at 11:19 AM on January 21, 2010

Sorry, I'll try to clap louder.

I don't want you to fucking clap, I want you to not resign yourself to failure. What do you have to gain by apathy now apart from shielding yourself from the disappointment of setbacks and failures?

This is exactly what I'm talking about: Before the serious political reform push has even begun, you're abandoning the only people actively pushing for what you claim to want.

Do you think your local tea party guy, or corporate lobbyist reacts this way to failure? Do you think they're taking it for granted these reforms will pass because of public support for the measures.

Of course not, because they know it doesn't matter how much raw popular support there is for legislation so long as the practical political support--meaning, the support of those engaged in the process of moving the legislation and/or the direct political pressure on those attempting to block it--is lacking.
posted by saulgoodman at 11:19 AM on January 21, 2010 [2 favorites]

Smarter, more qualified people than I disagree with you, too, so please recognize this as a legitimate difference of opinion

No. Just no.

For one thing, Dershowitz isn't much more qualified than you if at all. His area of expertise does not encompass the question at issue, which is a question of federal jurisdiction and the power of federal courts. Dershowitz is an expert in criminal law, not in Article III. Ask John Manning his answer to this question.

Secondly, an appeal to authority is fallacious in any event. While authorities are good places to look for a cogent discussion, their discussion doesn't become cogent by virtue of their authority.

Thirdly, Dershowitz isn't saying what you're saying. He's saying he disagrees with Scalia (and he's saying so because he's wrong, but we'll get there eventually). He's not saying Scalia is so disingenuous or wrong or ill-behaved or incompetent that he should be impeached, which is what you're saying.

Fourth, if you're saying that the underlying question about the proper role of habeas courts is a "legitimate difference of opinion," then you're conceding your position: namely, that Scalia's "opinion" is so drastically il-"legitimate" that it warrants his impeachment.

Fifth, Scalia is correct. (1) The Constitution provides procedural safeguards, and ensuring those safeguards is one of the roles of the Court. It does not guarantee that lower courts will always be right, and even if it did, it does not charge the Supreme Court with ensuring that accuracy. There's very high value in ensuring that the Supreme Court cannot arbitrarily overturn the facts ascertained by lower courts. (2) While Article III provides the Supreme Court with appellate jurisdiction as to law and fact, it also provides the Congress the power to limit that appellate jurisdiction, and with regard to factual determinations, it did so when it created the lower federal court structure.

Sixth, regardless of whether Scalia is correct or incorrect as to what the proper role of courts happens to be, it cannot be said with a straight face that he believes a person's guilt or innocence should have no bearing on whether they are put to death. Saying that the Court cannot play that role is different from saying NOBODY can play that role. After a conviction, it is perfectly within the realm of propriety for the Executive to grant clemency or otherwise act in a way that voids the conviction. Saying it's no longer in the Court's hands to act doesn't suggest that the man should be put to death, and it's disingenuous to pretend otherwise.
posted by jock@law at 11:22 AM on January 21, 2010

Before the serious political reform push has even begun, you're abandoning the only people actively pushing for what you claim to want

Bullshit. What you call apathy the rest of us call "common sense". There are too many moderates in the party. Every time Obama says the word "bipartisanship", he really means "appeasing the moderate-to-conservative Democrats who gave us majority at the cost of any real commitment to progress."
posted by muddgirl at 11:23 AM on January 21, 2010 [4 favorites]

Given that slavery is the ownership of one person by another, how is it possible for corporations to simultaneously be people, in the legal sense, and for the ownership of corporations not to be illegal under the 13th Amendment?

(1) Slavery isn't the ownership of one person by another, it's the government-enforced ability of one person to make another person work. This is why, e.g., specific performance is unavailable as a remedy for a breach of a service contract.

(2) Corporations don't get all of the rights of people. The hashing out of what rights they get and why and when they came to get those rights is a long story and one worth investigating. MeMail me if interested and I'll see if I can provide a good book recommendation.
posted by jock@law at 11:27 AM on January 21, 2010

Obama says the word "bipartisanship", he really means "appeasing the moderate-to-conservative Democrats who gave us majority at the cost of any real commitment to progress."

No, what he really means is there's a substantial number of Blue Dogs and self-described moderates in the Democratic majority whose votes literally have to be won somehow in order to pass legislation. And that if it's possible to find strategies for pulling in the support of some of the less hard-line Republicans to further buffet support for a major piece of legislation working through the process, then wouldn't it be stupid not to at least try to pull in some of that additional support?

If you've ever sat on a decision-making committee of any kind, you understand why this is the case. No matter how passionate or determined you might be, if the votes can't be put together, they can't be put together.

Since we didn't suddenly start electing only progressives to congress when Obama got elected (and since Democratic party affiliation doesn't necessarily guarantee a candidate's progressive platform), what other options are there for getting reform through. Moderates and Blue Dog Dems make up a sizable voting block in Congress, and Obama can't change that.
posted by saulgoodman at 11:32 AM on January 21, 2010 [2 favorites]

Way back in '06 Jonathan Rauch wrote the article "Unwinding Bush" which evaluated Bush's legacy and posited that "unwinding Bush will take more than a decade but less than two, meaning the job will be harder than unwinding Carter but easier than unwinding Nixon".

I would luuurve to see him revisit his assertion in light all which has transpired since '06.
posted by Esteemed Offendi at 11:35 AM on January 21, 2010

Having read the decision, I think you're wrong. It's not ... outside its authority

Please explain to me how. The Supreme Court doesn't get to just change state law as it likes. State Supreme Courts are the ultimate arbiters of state law to the extent that they do not conflict with federal law. Since Congress has not made a law preempting the entire field of corporate law, and since Congress has not passed any law that specifically says that corporations get to contribute money (in fact, quite the opposite...), and since the Constitution makes no provision for the rights of corporations, where does the Supreme Court draw its authority?

Answer: it doesn't. The corporate form is a wholly made up invention of state law, and state law and state law alone gets to decide what the corporate form means, unless and until Congress preempts that power through the Commerce Clause.

Corporations only even exist by statute. Questions regarding their nature, rights, and responsibilities are questions of statutory construction. The Supreme Court does not get to engage in statutory interpretation of state law just because it wants to.
posted by jock@law at 11:36 AM on January 21, 2010 [6 favorites]

The Supreme Court doesn't get to just change state law as it likes.

Bush v. Gore did away with that little nicety.
posted by one more dead town's last parade at 11:39 AM on January 21, 2010 [3 favorites]

Bush v. Gore did away with that little nicety.

Bush v. Gore has no precedential value, and was grounded in an actual (though highly questionable) conflict between state and federal law.
posted by jock@law at 11:41 AM on January 21, 2010

jock@law Thanks.
posted by sotonohito at 11:45 AM on January 21, 2010

muddgirl: " Every time Obama says the word "bipartisanship", he really means "appeasing the moderate-to-conservative Democrats who gave us majority at the cost of any real commitment to progress.""

FTW:

... still, maybe Obama’s right. Maybe there’s something the GOP will work with him on. Maybe he just needs to find something they really want to do, and they’ll go along.

Like reducing the deficit, for example.
Top Republicans on Wednesday were hostile toward President Obama’s plan to create a bipartisan commission on cutting projected deficits, raising doubts about the prospects of a main piece of his budget strategy. [...] This sounds like political cover for Washington Democrats who are starting to realize that their out-of-control spending is scaring the hell out of the American people,” Mr. Boehner said of the tentative deal between the White House and Congressional Democratic leaders on Tuesday night.
Face it. They’re just not that into you, Barry.
posted by Joe Beese at 11:45 AM on January 21, 2010 [2 favorites]

Well, I think the next step is pretty clear: why can't corporations vote? If they're really due rights of speech, why aren't they due other important rights, like the franchise?
posted by weston at 11:48 AM on January 21, 2010

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Regardless of the technical soundness of the decision, this ruling shows a callous disregard for human life and the ultimate responsibility of the judiciary for pursuing justice. It might have set new precedent to decide otherwise, but this position still flies in the face of the ultimate purpose of the justice system, IMO. All the court would have had to do was decide otherwise and set a new original precedent for future courts to follow. There's the letter of the law, and then there's the underlying intent. Interpreting that, too, is the responsibility of the court.

Besides, how is it not a form of "cruel and unusual punishment"--almost tantamount to torture--to allow an innocent person to be executed with the knowledge that the highest judicial authority in the land has ruled that it must remain under all circumstances completely indifferent to the actual culpability of people facing execution?
posted by saulgoodman at 11:48 AM on January 21, 2010

You keep ignoring the fact that it is the executive branch that is charged with this responsibility. But besides that fact is this: The value of a divided system of government is greater than the value of a number of human lives. If the Founders hadn't believed that, they wouldn't have risked death themselves fighting a war over it.
posted by jock@law at 11:52 AM on January 21, 2010 [1 favorite]

Silly rabbits! Of course you can't shut down a company as a punishment - for moral reasons if nothing else!

Think for a moment. Corporations never commit sins - corporations are not human and do not have any moral responsibility at all. Jailing a corporation for crimes "it" committed is like jailing a car used by a drunk driver.

The moral responsibility lies entirely with the officers, management, owners and employees of the company. They should go to jail.

Shutting down the company hurts most the workers at the lowest level, who have the least blame. Jailing the management is far more effective.

The issue is exactly that the "limited liability corporation" lets you whitewash moral obligation. I am a moral person. I purchase a stock. The CEO of that company is also moral. But he is now legally obliged to me to maximize the share price. If he does something that's "morally better" but makes less money he can lose his job, occasionally be sued, very very rarely be criminally charge (as when people embezzle to give money to charity, which does sometimes happen...)

This chain of disintermediation extends to the point where saintly grandmothers own stock in companies with factories that are only one or two steps above slaves in a death camp.

The "limited liability corporation" idea is also an extremely dangerous one. It's a massive scam where The People accept unlimited liability from a small number of rich people in exchange for nothing at all (the hope of future taxes).

Suppose my family runs a company for 50 years and collects billions of dollars. Then our factory melts down and destroys a city, costing trillions of dollars in damages. The company goes under - we get to keep our billions - your city is destroyed. "None of us has actively run the business in 20 years! Arrest those pesky managers."

And it's worse than that. A more or less universal law is that you are compensated more for accepting greater risk. If The People are accepting all of your risk past a certain point, then it's economically logical for you to accept as much risk as you possibly can, because if it works then you get huge payoffs, and if it fails then The People will take the hit. It makes total sense for me to write lottery tickets and sell them, because the chance that any one ticket will pay off is small, and if one does, I'll go bankrupt and The People will pay it.

Corporations have been writing lottery tickets against The People for years - and the reason we're seeing so many jackpots is not just that there are so many tickets out there but that everything is correlated and when one jackpot pays off against us, it increases the chance of the next.

The worst is that Wall Street's risk models didn't take this into account. This is worth a diversion...

I remember when I first heard the claim that the Black-Scholes pricing model was broken. I'd cut my teeth on this in early days on Wall Street and there seems to be no other logical way to price an asset with variable payoffs - I was very skeptical indeed.

I still remember when and where I was that I read this - it was in Mountain View, California, in the lobby of a hotel where I was staying for Google and I was reading some financial paper while waiting for a van to take me to work. You don't know me to know how completely alien this is to my life now - I had a busy few years in the 80s on Wall Street but have since been an engineer with a bohemian NYC lifestyle... so I'm pretty squiffed out by all the cars, roads, suits, and Wall Street Journals.

The article hit me like a bomb - it was like a flashback - because I realized that one of our chief assumptions was completely wrong. It's not like I didn't know something was wrong - or that I was the only one. It was pretty clear that volatility models didn't explain everything - people talked about "fractals", I personally talked about the "volatility of volatility" which at least gave us another dial to twist - but the Black-Scholes argument seems impossible to beat.

Black-Scholes simplified... I sell an option, the right to buy Something, at a specific price, for a specific time. I have no opinion on the future price of this Something - so I manage the risk by delta hedging. If right now I think there's a 50% chance I'll have to sell you this something, I buy 0.5 Somethings -- if later if I think the chance of your exercising the option is 40%, I sell 0.1 Somethings, if I think the chance of your exercising the option 60%, I buy 0.1 Somethings.

If I do this correctly, no matter what happens to the price of the something, I have a fixed loss on that option contract - that's the "price" of the option, which I mark up a tiny bit and sell to you.

There are some asterisks there which we knew. There's a cost for each transaction - if the market keeps moving up and down you can lose a lot of money and not actually do anything. But big traders have extremely low transaction costs. And there's also the chance of discontinuous moves where you can't delta hedge - and you lose money. This is always true, but you can put a ceiling on these and apparently account for that in your model.

What this article pointed out to me what that the fantasy was that we were acting alone. Of course, of course, the market was affected by everyone else making the same decisions we were, always ending up selling volatility, selling net options, writing lottery tickets to the customers and to everyone.

In this real world, when you go to delta-hedge, a thousand traders are doing the same thing. And if you're writing options, that means you're selling into a down market, or buying into an up market. Which pushes the market lower, or higher. Which makes you and your thousand buddies do the same thing - and the cycle continues. Except that it's a cycle that damps as you go up (because non-institutional investors come in and sell their stuff if the market pops) and feeds back on itself as you go down (because as you are selling all your crap, there isn't more money to come in to buy the crap).

Now, unfortunately the arbitrage-based Black-Scholes has been used as the basis for pretty well every system for valuing securities with variable payouts(*) so this means that we've been selling lottery tickets at less than their expected payoff value pretty well everywhere throughout the system. And when these tickets come due, they're all going to come due at once. And these limited liability companies are going to pass the bill to The People.

(*- you can think of the Bayseian models as just a scaled sort of Black-Scholes model. What's interesting is that IMHO the error is much more obvious expressed as a Bayseian sort of thing because one of the axioms behind the Bayesian models is that the probabilities have to be independent, and in real markets they clearly aren't...)
posted by lupus_yonderboy at 11:54 AM on January 21, 2010 [8 favorites]

Bush v. Gore has no precedential value, and was grounded in an actual (though highly questionable) conflict between state and federal law.

It was stated to have no value as precedent at the time it was written, but that hasn't stopped lower courts from referring to it. Whatever the intention was, facts on the ground have overtaken them & it now stands as precedent for several lower court decisions.
posted by scalefree at 11:56 AM on January 21, 2010 [2 favorites]

From a commenter at The Plum Line:

DNC should spend some of the funds raised, to put a picture of Tim Kaine on all Milk Cartons.

posted by enn at 11:56 AM on January 21, 2010 [2 favorites]

no precedential value

Saying that doesn't make it any better that you're ignoring the fact that a state's supreme court is the ultimate arbiter of its laws just so you can put your guy in the Oval Office.
posted by one more dead town's last parade at 11:57 AM on January 21, 2010

For those of you wondering how big a deal this is, here's some guesstimated numbers to work with (I'd love to see more precise research, but they're not far off).

Barack Obama raised record funds in the last election, approximately $700 million.
Approximately $6 billion was spent in total on the presidential election.
We could therefore estimate that approximately $12 billion is spent on all races in a presidential election year.
The Fortune 100 companies earn approximately $600 billion in net profits each year.
The Fortune 100 companies could therefore spend $60 billion attempting to influence elections, outspending all other sources by a factor of five, every single year, if they believed it would increase their profits by 10%.

Forget the presidential election. Think zoning boards, school boards, city counsels, state representatives, attornies general, secretaries of state -- the low-profile officials who make our country run, and whose elections can be bought cheap.

If that scares you, this constitutional amendment might be a good idea to support with your dollars and your time:

The Solution: A Free Speech for People Amendment

They're supported by Voter Action, which is good people; I can't otherwise vouch for the group, but I hope they're real, because we need it.
posted by jhc at 11:58 AM on January 21, 2010 [16 favorites]

On a side note, can a individual who is a citizen of another country start a corporation in the US (or give money to a US citizen to start a corporation) and run ads for one candidate?

This is a really good question. Isn't this an absolutely simple way for not just foreign individuals and corporations, but foreign governments, to influence the US political process? All they have to do is incorporate a subsidiary in the US, or acquire a controlling influence in a going concern. It doesn't even have to be a business... it can be a non-profit, or whatever you want really.

On the face of it, this is one of those good-for-the-goose-good-for-the-gander decisions. I certainly look forward to seeing Kim Jong Il's ads on TV.
posted by unSane at 12:02 PM on January 21, 2010

So...am I remembering elementary school social studies correctly when I think that the only way to overturn a Supremes decision is to either get another case in front of them where it is decided differently, or by a constitutional amendment?

That's it, right?
posted by dejah420 at 12:05 PM on January 21, 2010

I believe it's also possible to do it by armed revolution, dejah. But you'd probably want to check first.
posted by unSane at 12:07 PM on January 21, 2010

Isn't this an absolutely simple way for not just foreign individuals and corporations, but foreign governments, to influence the US political process?

Introduce bill prohibiting any attempt by foreign-owned corporations to influence elections.
Wait for Republicans to vote against said bill.
Attack ads about how said Republicans want the Chinese (Canadians, French, Mexicans, whatever) to have more of a say in politics than you, the voter, do.

But by the time we get to step 3, the corporate ~~money~~ speech will probably drown everything else out.
posted by one more dead town's last parade at 12:09 PM on January 21, 2010

OK, the Massachusetts election was a (probably temporary) setback, but today the sky really is falling.

This is such a dreadful decision that I'm wondering what the public reaction will be. The public rarely pays a lot of attention to Supreme Court decisions, but is already furious at Big Business and the links it sees between big corporate money and government.

I can't believe the majority actually said with a straight face that buckets of corporate money washing around in political races doesn't and won't give rise to real or perceived corruption. Have they never heard of the Gilded Age, when Congresspeople belonged to the highest bidder? How about the obscene amounts of money already sloshing about in state supreme court races? Hmm, how does this court think the public feels about corporations buying their very own jstate justices? (They recently said an egregious case could offend the constitution, but how to square that with today's ruling?)

I think a lot of good points have also been made on this thread about the (il)logical consequences of treating corporations as persons with constitutional rights.

Finally, I fear this is not the worst to come.

SCOTUSblog notes that by 8-1 . . . that two disclosure restraints were kept in place . . . . a small consolation, of course. But the internet has been moderately helpful in casting a spotlight on embarrassing connections for candidates.

But what of the Referendum 71 case on which the Supreme Court has taken review, in which the R71 proponents argued successfully that they had a first amendment right to conceal the identities of the people who signed petitions to put R71 on the ballot? If the Supreme Court rules in their favor, which I think likely, then of course corporations will have first amendment privacy rights too.

There are two ways to fix this terrible ruling: constitutional amendment or a later decision overruling this one. I live in hope that one of the members of the majority will leave the court and that Obama will be able to appoint a sensible replacement, but I don't think our political process will stand up well to the impact of this ruling in the meantime. We all need to think about working for an amendment.
posted by bearwife at 12:10 PM on January 21, 2010 [3 favorites]

You know I'm not a Congressman, right? I'd hate to think you were confused about who you're supposed to be barking this to.

I'm sorry if the tone of my comment was too strident or disrespectful, but I think the sentiment you expressed is exactly the kind of sentiment the opposition does everything in its power to encourage to provide political cover and raise doubts about support for reform efforts. It's not that I don't think the sentiment is understandable or legitimate, I just don't think it's helpful.
posted by saulgoodman at 12:13 PM on January 21, 2010 [1 favorite]

smackfu: Huh. The ability for labor unions to spend heavily on elections would seem like something people here would like.

Except for the fact that state laws severely restrict the ability of unions to allocate money to spend on elections. This ruling does nothing to remedy that restriction. So a CEO can allocate millions of shareholder dollars without government restriction to use for campaigns. State laws prohibit unions from doing that with union dues.

Without the freedom to allocate money for election spending, the right of both unions and corporations to spend money for elections is about as equal as a law forbidding both rich and poor from sleeping under bridges.
posted by JackFlash at 12:14 PM on January 21, 2010

"Say what you will, but this is a victory for free speech."

Not it's not, because it privileges the political speech of some individuals over others.

How's that? Well, if you're a CEO, you get to contribute to a candidate up to the maximum contribution caps for individuals, and you get to exceed those caps in your capacity as a representative of whatever corporate interests you represent.

In other words, CEOs and other leaders of formally incorporated interest groups now have more speech freedom than non-executives because they can circumvent the individual limits.

This is blatant unequal application of the law and privileges the speech rights of certain individuals over others. If you're a CEO, you now get to talk more and louder than ordinary citizens, effectively creating unequal protection under the law, systematically privileging the speech rights of some individuals more than others.

Yes, this is a victory for freedom of speech.

To respond that allowing corporations to independently finance political campaigns is privileging the speech of a select few, is yet another example of an argument that recommends hurting the strong to help the weak. There is no call in the Constitution to reduce freedom for the sake of equalizing speech. This notion of quantifying one party's freedom of speech, "If you're a CEO, you now get to talk more and louder than ordinary", is found only in the arguments of liberals, which reflects their fixation with 'privilege'. But the intent of the First Amendment is to protect all speech from government interference, not to obstruct corporate speech because some dislike their having the means to promote their views. If an organization can not spend as much as they like to put out a political message, what is this but the government restraining their ability to speak?

Don't media corporations have the ability to push a political agenda? Few of us would want them to lose the ability to present a political opinion, that is after all their business. Is it fair to prevent other corporations from accessing that platform?

It isn't the government's responsibility to create a space for political discussion free from wealth's amplification of a particular view. The responsibility of sorting through the messages should remain with the listener.
posted by BigSky at 12:14 PM on January 21, 2010

USA INC.= The Whore of the Global Community.
posted by Liquidwolf at 12:14 PM on January 21, 2010

Introduce bill prohibiting any attempt by foreign-owned corporations to influence elections.

But how do you define foreign-owned? How do you know who the shareholders are? Is it foreign owned if 49% of the voting stock is foreign held? What if Mexico gives a lot of money to a bunch of Hispanic organizations in Texas, who then use that to influence border policies. There are a million ways to launder the money through individuals. It's a huge can of worms.
posted by unSane at 12:16 PM on January 21, 2010

this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

If only there were some Presidential election in which the critical eye of the public forced literally every candidate to decry the effect of corporate spending on the sanctity of the political process, maybe we'd have some reason to believe otherwise!

Now if you'll excuse me, I've got to get back to my time machine. My family is waiting on me to start dinner, back in 2007!
posted by cobra_high_tigers at 12:17 PM on January 21, 2010

There is no call in the Constitution to reduce freedom for the sake of equalizing speech.

Yes there is. Even better, there's a general provision requiring that all protected rights be protected and applied equally for all individuals. It's called the EQUAL PROTECTION CLAUSE.
posted by saulgoodman at 12:18 PM on January 21, 2010

If an organization can not spend as much as they like to put out a political message, what is this but the government restraining their ability to speak?

Organizations don't speak. Organizations aren't necessarily even owned by Americans. You are seriously grasping.
posted by saulgoodman at 12:19 PM on January 21, 2010

Yes, this is a victory for freedom of speech.

Sure, as long as we only care about rich people's ability to express themselves.
posted by delmoi at 12:23 PM on January 21, 2010 [2 favorites]

Don't media corporations have the ability to push a political agenda? Few of us would want them to lose the ability to present a political opinion, that is after all their business. Is it fair to prevent other corporations from accessing that platform?

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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

You will not the press was specifically called out there. Media companies have access to more rights by their nature.
posted by furiousxgeorge at 12:25 PM on January 21, 2010

*note
posted by furiousxgeorge at 12:26 PM on January 21, 2010

Any thought as to how this will affect the Republican party's stance on social issues?

In searching for a bright spot in this ruling, I was thinking that I'd honestly rather have politicians pandering to corporate interests than pandering to a group of right-wing religious conservatives.
posted by foggy out there now at 12:30 PM on January 21, 2010 [3 favorites]

I was thinking that I'd honestly rather have politicians pandering to corporate interests than pandering to a group of right-wing religious conservatives.

That's fairly short-sighted of you.
posted by enn at 12:32 PM on January 21, 2010

Me, earlier: Obama either leads, goes deep populist, emulates Reagan by blaming the opposition party for everything, and shows some teeth, or he goes home. But honestly, I think his presidency is effectively over. Carter all over again.

saulgoodman, not necessarily replying to me: Before the serious political reform push has even begun, you're abandoning the only people actively pushing for what you claim to want.

Yes, saul, I think there's abandonment going on. I just disagree about who's doing teh abandoning:

Talking Points Memo reports (emphasis added):

The White House will move health care reform to the back burner, in order to "let the dust settle" after Democrats lost their Senate super-majority.

Asked today if health care was on the back burner, Press Secretary Robert Gibbs said, "The president believes it is the exact right thing to do by giving this some time, by letting the dust settle, if you will, and looking for the best path forward."

He said the administration wants to give Congress time to figure out their next move.

"The President thinks the speaker and the majority leader are doing the right thing in giving this some time and figuring out the best way forward," he said.

He also noted that President Obama "has a very full plate" with financial reform, the economy, the wars and other matters.

So Obama, who has deferred to Congress for the last full year, has a new plan: continue to defer to Congress. HE'S NOT LEADING.

If Obama wants this bill, he needs to be the one who, on all three networks at the State of the Union, looks directly at the American Peopke and explains that he's the decider, and that he's decided that making sure all Americans have access to health care is a matter of national security.

And that therefore he's issued an executive order directing the Veterans' Administration to treat any US citizen, veteran or not who can't otherwise get care. And to supplement that, he's sending in to California and Texas and Arkansas and Michigan the same US Navy hospital ships and US Army field hospitals we've just been using in Haiti, because god dammit, in the greatest country in thje world we'd better not have any citizens less well served than our Haitian neighbors.

And because that's not sustainable in the long term, Congress now has 30 days to provide access in some other form. And that whatever is passed goes into effect before July 4th 2010. And then dare the Republicans to oppose him.

Yes, he could.

But of course, he won't. Because that wouldn't be safe, and incrementalist and bipartisan.
posted by orthogonality at 12:32 PM on January 21, 2010 [22 favorites]

But it's the house progressive caucus that's balking. They've made it unequivocally clear they won't vote for the bill. So what's Obama supposed to do, push them to vote anyway and let the bill fail?

Pelosi is now claiming (whether it really amounts to anything or not) that the progressives caucus is working on a strategy for getting the bill through with more of the meatier House provisions intact, possibly by passing the provisions common to both versions now and inserting language that would require coming back to revisit some of the more controversial differences between the two bills in reconciliation (which would require only 51 votes). If they can (fairly quickly) figure out a way to do this, maybe there's some life left in the effort yet.

But I agree, it's hard to muster any real confidence they'll have the political will and determination to see it through, given all the dithering we've seen up until now. People need to hold Pelosi's feet to the fire over this.
posted by saulgoodman at 12:42 PM on January 21, 2010

But how do you define foreign-owned? How do you know who the shareholders are? Is it foreign owned if 49% of the voting stock is foreign held? What if Mexico gives a lot of money to a bunch of Hispanic organizations in Texas, who then use that to influence border policies. There are a million ways to launder the money through individuals. It's a huge can of worms.

How about:

No person who does not reside in the United States shall, during a referendum period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular answer to a referendum question unless the person is
(a) a United States citizen; or
(b) an immigrant as defined in 8 USC § 1101.

(lovingly stolen from the Canadians)

If money used to influence U.S. elections is traceable back to you or through you, and you're a nonresident alien, you should expect to have a warrant issued for your arrest.
posted by one more dead town's last parade at 12:43 PM on January 21, 2010 [1 favorite]

If money used to influence U.S. elections is traceable back to you or through you, and you're a nonresident alien, you should expect to have a warrant issued for your arrest.

So if you're an Argentinian who owns 100 shares in Pfizer, we're going to issue a warrant for your arrest because Pfizer bought an attack ad spot? Good luck with that.
posted by saulgoodman at 12:46 PM on January 21, 2010 [3 favorites]

Yes there is. Even better, there's a general provision requiring that all protected rights be protected and applied equally for all individuals. It's called the EQUAL PROTECTION CLAUSE.

There is nothing in the Equal Protection Clause stating that the ability to project one's views must be equalized. Corporation X broadcasting a message does not infringe on your freedom of speech.

Organizations don't speak. Organizations aren't necessarily even owned by Americans. You are seriously grasping.

What? 'Speak' is just another way of saying 'advance their opinion'. Kind of like how Citizens United is a free speech case, even though they were trying to get a documentary broadcast.

-----

You will not the press was specifically called out there. Media companies have access to more rights by their nature.

Interesting argument, I have not seen this issue addressed. Can you provide a link where this is discussed further?
posted by BigSky at 12:47 PM on January 21, 2010

To be fair, the puppy is really cute.
posted by kirkaracha at 12:47 PM on January 21, 2010 [1 favorite]

There are a million ways to launder the money through individuals. It's a huge can of worms.

I agree with you, but I'm not sure how the ruling really changes things. I suspect there's a lot of laundering going on under current rules, basically passing out money to individuals to "donate" to a candidate for a faux-grassroots appearance, or making donations under multiple people's names.

My understanding is that there's a lot of, erm, shenanigans that goes on prior to fundraising events in this vein. Since each person can only contribute a certain amount, there's an obvious incentive for would-be major donors to find ways around the maximums, leading to the fund-raising equivalent of a "straw purchase" at a gun or liquor store. It's very difficult to enforce.

But all that has gone on for years and I don't see it really changing, since the caps on actual direct donations to a candidate's campaign are still in place.
posted by Kadin2048 at 12:48 PM on January 21, 2010

saulgoodman: "Obama says the word "bipartisanship", he really means "appeasing the moderate-to-conservative Democrats who gave us majority at the cost of any real commitment to progress."

No, what he really means is there's a substantial number of Blue Dogs and self-described moderates in the Democratic majority whose votes literally have to be won somehow in order to pass legislation. "

That's not really true. And this is one of the reasons that the Republicans legislated more effectively in the past than the Democrats are now. The Democrats need a supermajority in the Senate to vote to close debate. To pass the actual vote they need a simple majority. This would have allowed them to provide political cover for Democrats who thought they would have election trouble if they actually voted for a given bill.

In the past it has happened that a bill sometimes got filibustered by the opposition party. In the first year of Obama's presidency the Democratic agenda was essentially being filibustered BY MEMBERS OF HIS OWN PARTY.
posted by jefeweiss at 12:52 PM on January 21, 2010 [3 favorites]

So if you're an Argentinian who owns 100 shares in Pfizer, we're going to issue a warrant for your arrest because Pfizer bought an attack ad spot?

No, but if you're on the board of a Chinese company who's running attack ads against candidates who support a carbon tax, you should watch out.
posted by one more dead town's last parade at 12:52 PM on January 21, 2010

Country Z sends a wad of cash to its sleeper agent X. He purchases a controlling interest in a small privately held corporation (no public disclosure of his ownership required) and can now use the corporation as a front to influence elections in whatever way he wishes.
posted by unSane at 12:55 PM on January 21, 2010

There is nothing in the Equal Protection Clause stating that the ability to project one's views must be equalized. Corporation X broadcasting a message does not infringe on your freedom of speech.

That's not the point. The point is that there already exist long-established legal limits on the political contributions individuals can make. These laws in effect now apply unequally because certain individuals, by virtue of holding executive positions, are able to effectively circumvent the legal caps on individual political contributions by directing funds from the organizations they lead toward their preferred political causes in addition to whatever funds they expend as private citizens. That creates a double standard.
posted by saulgoodman at 12:55 PM on January 21, 2010 [1 favorite]

Scalia to retire or die (he turns 74 in about a month)

Stevens is 89, Ginsburg is 76, Kennedy is 73, and Breyer is 71. Obama would have to replace all of them to maintain the current (im-)balance on the Court. The aging liberal justices was a big deal for me during the election and I'm surprised we haven't seen more retirements.

the only way to overturn a Supremes decision
Well, Florence Ballard's dead, and Diana Ross and Mary Wilson aren't talking, so confidence is low.
posted by kirkaracha at 12:56 PM on January 21, 2010

No, but if you're on the board of a Chinese company who's running attack ads against candidates who support a carbon tax, you should watch out.

Why? Do you see that somewhere in the court's ruling? This ruling explicitly equates spending with speech and ascribes speech right protections to corporations as entities, not to the individuals running the companies. As individuals, they already enjoyed free speech protection; now they enjoy it both as individuals and as representatives of their organizations, which effectively provides them a new category of speech protections that ordinary citizens don't enjoy.

And nowhere does this ruling offer any restrictions on the ownership of the corporates engaged in an entirely new class of protected speech (which, BTW, I think we should hereafter refer to as "Newspeech.")
posted by saulgoodman at 1:02 PM on January 21, 2010

Why? Do you see that somewhere in the court's ruling?

No, I mean we can do that, because foreigners outside the U.S. have fewer protections under the U.S. constitution than people inside the U.S. (and in some cases, foreigners inside the U.S. have fewer rights than citizens inside the U.S.).
posted by one more dead town's last parade at 1:05 PM on January 21, 2010

It does occur to me that if the United States is on the far right on a global political scale that maybe allowing citizens of other countries to spend money to influence our political process isn't such a bad idea.
posted by jefeweiss at 1:06 PM on January 21, 2010 [3 favorites]

I think maybe this could be an opportunity to change that. How about someone starts a non-profit corporation with the goal of taking campaign contributions from left leaning people in other countries to influence the elections in the US? There's got to be a pent up demand from people in other countries who are tired of watching us screw everything up.
posted by jefeweiss at 1:15 PM on January 21, 2010

> There is no call in the Constitution to reduce freedom for the sake of equalizing speech.

>> Yes there is. Even better, there's a general provision requiring that all protected rights be protected and applied equally for all individuals. It's called the EQUAL PROTECTION CLAUSE.

That makes no sense. The 14th Amendment protects you from your state denying you the equal protection of the law.

The fact that someone, or a group of someone's, can proclaim their opinion more loudly than you because they have more money is not the state violating your rights. All of you still have the right to contribute to, and make, political speech.
posted by jsonic at 1:16 PM on January 21, 2010

I mean, a corporation that would have a legitimate business interest in informing people about various issues that relate to its shareholder values.
posted by jefeweiss at 1:17 PM on January 21, 2010 [1 favorite]

American government comes to its logical conclusion: phase out the middle-man politician and just elect the lobbyist!
posted by sharkitect at 1:17 PM on January 21, 2010 [1 favorite]

How about this? I set up an American-owned corporation which sells $5 pieces of paper to foreigners, perhaps on ebay. Each piece of paper guarantees that the corporation will spend $4.50 on advertising to influence a particular issue or candidate. The money is funnelled through Chambers of Commerce and thus cannot be traced back to the corporation.

In this way, foreign nationals and governments can purchase as much advertising as they wish, but the corporation remains wholly American, and turns a healthy profit too.
posted by unSane at 1:23 PM on January 21, 2010 [4 favorites]

The fact that someone, or a group of someone's, can proclaim their opinion more loudly than you because they have more money is not the state violating your rights.

A corporation is not a someone or a group of someones. It is a specific creation of state law intended for a very narrow purpose related to advancing narrow aspects of the interests of a group of someones.

If I own stock in Microsoft, and Microsoft says X, I am not a part of a group of someones saying X. I am a shareholder whose money is being redirected to further the interests of this increasingly-anthropomorphic Frankenstein the Supreme Court has been constructing since Dartmouth v. Woodward.
posted by jock@law at 1:27 PM on January 21, 2010 [4 favorites]

Shutting down the company hurts most the workers at the lowest level, who have the least blame. Jailing the management is far more effective.

I think you're right, but given how hard individual accountability tends to be in a corporate context, it seems like there should be some kind of corporate penalty available.

Perhaps rather than the corporate death penalty, a solution of this stripe might probably involve some kind of seizure/forfeiture of ownership: governing shareholders have the potential to lose some significant part or even all of their investment for certain corporate crimes.
posted by weston at 1:27 PM on January 21, 2010

Ugh, I'm inconsolable over this.

For a good overview of how corporations got so powerful I suggest the engaging Gangs of America by Ted Nace.

This is such a bizarre finding, and the culmination of several bizarre findings. The Court's decision in Buckley defined corruption and its appearance down to quid pro quo only, then the Virginia Pharmacy finding that people should have access to price information slid sideways into the Bellotti finding not that corporations have a right to speak (that has never been asserted) but that citizens have a right to hear corporate speech.

In practice it changes very little...we're just a little more honest now about the fact that corporations run this country. I weep for our future.
posted by Monsters at 1:28 PM on January 21, 2010 [2 favorites]

The point is that there already exist long-established legal limits on the political contributions individuals can make. These laws in effect now apply unequally because certain individuals, by virtue of holding executive positions, are able to effectively circumvent the legal caps on individual political contributions by directing funds from the organizations they lead toward their preferred political causes in addition to whatever funds they expend as private citizens. That creates a double standard.

There is no double standard here.

The legal limits on individual political contributions, are for direct contributions to a candidate's campaign. If an individual wants to spend money to proclaim their political views, they can do so without restraint. And that's what we're talking about in this case, independent campaign ads, not direct campaign contributions. Individual limits on direct campaign contributions is a red herring. Bringing it in to this discussion confuses the issue.
posted by BigSky at 1:29 PM on January 21, 2010 [3 favorites]

The fact that someone, or a group of someone's, can proclaim their opinion more loudly than you because they have more money is not the state violating your rights.

No, but the fact that this effectively establishes a completely different set of legal standards for speech that apply only to executives is the state violating your rights. This decision entrenches two completely different sets of rules regarding political speech, one set of rules that (differences in relative wealth notwithstanding) benefit all individuals equally, and another set that benefits only some.

This ruling, among other things, affirms that a particular subset of the population enjoys extraordinary speech protections not enjoyed by everyone else. Not just that they can speak louder by virtue of having a bigger bullhorn, but that they are allowed to have a second bullhorn (and potentially, a third, fourth, etc.). It's akin to letting CEOs vote once on their own behalf and once again on behalf of any organizations they represent.
posted by saulgoodman at 1:30 PM on January 21, 2010

You will not the press was specifically called out there. Media companies have access to more rights by their nature.

Interesting argument, I have not seen this issue addressed. Can you provide a link where this is discussed further?

From the dissent in the ruling today:

JUSTICE SCALIA also emphasizes the unqualified natureof the First Amendment text. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Like virtually all modern lawyers, JUSTICE SCALIA presumably believes that the First Amendment restricts the Executive, even though its language refers to Congress alone. In any event, the text only leads us back to the questions who or what is guaranteed "the freedom of speech," and, just as critically, what that freedom consists of and under what circumstances it may be limited. JUSTICE SCALIA appears to believe that because corporations are created and utilized by individuals, it follows (as night the day) that their electioneering must be equally protected by the First Amendment and equally immunized from expenditure limits. That conclusion certainly does not follow as a logical matter, and JUSTICE SCALIA fails to explain why the original public meaning leads it to follow as a matter of interpretation.

The truth is we cannot be certain how a law such as BCRA §203 meshes with the original meaning of the First Amendment. I have given several reasons why I believethe Constitution would have been understood then, and ought to be understood now, to permit reasonable restrictions on corporate electioneering, and I will give many more reasons in the pages to come.
posted by furiousxgeorge at 1:32 PM on January 21, 2010 [1 favorite]

Also, as jock@law lays out pretty well here, the court has flat out exceeded its legal authority in delivering this ruling.
posted by saulgoodman at 1:34 PM on January 21, 2010

A corporation is not a someone or a group of someones.

My comment was pointing out that of all the things that may be wrong with this decision, that it is a violation of the 14th amendment is not one of them.
posted by jsonic at 1:34 PM on January 21, 2010

As BigSky points out, this case is not about campaign contributions directly to a candidate, which are still restricted. It is about political speech by a third party concerning a candidate.

Although I do think that detractors of this decision can argue that any money that a third party spends on political ads for a candidate is a defacto campaign contribution. Since that candidate no longer needs to spend that money on ads, they can spend the money they would have spent on ads on something else.
posted by jsonic at 1:42 PM on January 21, 2010

The legal limits on individual political contributions, are for direct contributions to a candidate's campaign.

Well, not that this was established specifically with this ruling (though the error has been dramatically compounded by it), but corporations are also allowed to make direct campaign contributions, subject to legal limits. The status quo in campaign finance already violates the intent of the equal protection clause, since it effectively allows executives to contribute more to direct campaigns than other individuals, and this latest ruling only makes the situation far worse.
posted by saulgoodman at 1:44 PM on January 21, 2010

orthogonality: "But of course, he won't. Because that wouldn't be safe, and incrementalist and bipartisan."

Playing it safe within existing power structures is how Obama rose to his place in the ruling class. In fairness, I'm not sure how many other alternatives there are for intelligent black men.

So on the one hand, I want to yell at him, "There's nothing left they can withhold from you! You're wealthy. You have the Nobel Peace Prize. You're President of the United States. No community organizer in history has ever had as much power to do good as you have - even now. So what the fuck are you waiting for?"

Then I remember that few people ever develop completely different personalities at age 48, no matter how much is at stake.
posted by Joe Beese at 1:47 PM on January 21, 2010 [4 favorites]

“2) ... this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

It’s not like absolute power is going to absolutely corrupt anybody. This worked great for the Romans when the Praetorian guard could decide who was the new emperor.
Sure they assassinated politicians for money, turned on the people of Rome, destroyed their own prefects, placed whomever they wanted on the throne and forced domestic and foreign policy by threatening the families of politicians all the way up to emperor
But there’s no proof Sejanus overthrew Tiberius, y’know, on purpose. And hey, maybe selling the throne at auction to the highest bidder is the best way to make sure there’s a smooth transition of power. The Roman Empire lasted for ever, didn’t it.

“Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are.”
Everyone blows off Amendments 9 and 10 for some reason.

So foreign owned companies are ok to influence domestic policy? Some outfit in China can spend assloads of money on a barrage of commercials to get some guy they like elected? Ok, the CEO or the board chair is a citizen but all the stockholders are foreigners. To reiterate Stevens: “Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters…”

Not even foreign – just companies outside any given community with an agenda, Blah Book Binders pumping money into local school board elections and suddenly only Blah Textbooks are allowed in schools. Things like that happen as it is, this opens floodgates.

I used to use the old Necco wafer trick on the toll machines (at first just to see if it would work). After a bit I thought more seriously about it and stopped because I had some moral issues with it (even though the toll commission was demonstrably corrupt, I couldn’t in good conscious say I was doing what I was doing solely as protest).

So a bit back I was wrestling with the idea of whether it was ok to tamper with/destroy corporate owned property that had been delegated by the government – as a form of protest or for whatever other sort of political reason (we’ve had a lot of problems with privatized parking meters here in Chicago) – in the *cough* abstract of course. Sat on the fence there for a while.
This puts me over the fence. (Still don't know why folks in Pekin or Homer Glen, etc, haven't chewed up property. Crazy. And Daley is looking at privatizing the water system)

If corporate money is free speech, subverting corporate resources then is also free speech as much as expressing a dissenting opinion, which may be as politically damaging such as saying Mark Kirk is gay.
That wouldn’t apply to the business end of a company’s dealings. It wouldn’t let Earth First monkeywrencher types off (not that they’d care either way) if some logging company is minding it’s own business and just logging. But if, say, it spends money to get Joe Blow elected, and Governor Blow privatizes a given government service, that new corporate property is politically speechified and subject to counterspeech (destruction), no?

Yeah, I’m being Swiftian here. But hell the recognition of the practical realities are tortured in the first place.

“Man, Grayson kicks ass! I really like this guy. Too bad we don't have more of him.”

I understand he’s the youthful ward of some serious bad ass who operates from the shadows.
posted by Smedleyman at 2:00 PM on January 21, 2010 [6 favorites]

CEOs already have free speech rights because they are (generally) humans.

Generally.
posted by Lizard People at 2:36 PM on January 21, 2010 [5 favorites]

I was thinking about Accelerando, by Charles Stross. One of the elements of the novel is the use of DDoS techniques on the corporate scale, basically involving corporations spawning sub-corporations and sub-sub-corporations (ad infinitum) all owning one another, often via blind holding companies. The corporate charters were programs instructing the corporations how to vote in their mutual ownership.

Given, as seems likely, that this ruling does permit a corporation to donate hard money (up to the individual limit), what's to stop, say, R.J. Reynolds from spawning a few thousand, or even a few hundred thousand, sub-corporations, and having each of them donate hard money to their favored candidates?

Yeah, there's usually a modest incorporation fee, but R.J. Reynolds (or whoever) can easily afford to blow a few million in incorporation fees to start up its donation corps.

If they wanted to be able to give, say, $10 million to each of their favored politicians per cycle, they'd only need 5,000 donor corporations. At $400 each in incorporation fees (a bit higher than average), that's only two million dollars for setup. If I were a major CEO and wanted to buy Congresspeople retail, a two million dollar startup fee wouldn't be too much at all.

"No your honor, R.J. Reynolds didn't violate campaign finance law, our corporation donated exactly $2,000 to Congressman Smith. The fact that various corporations named RJ1 through RJ5000 each additionally donated exactly $2,000 to Congressman Smith merely shows that those corporations, acting independently, determined that they too believed Congressman Smith to be a good candidate. After all, they're merely exercising their free speech rights, and as the SCOTUS found independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that these officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."
posted by sotonohito at 3:06 PM on January 21, 2010 [2 favorites]

The President's statement on the decision:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.
posted by bearwife at 3:37 PM on January 21, 2010 [3 favorites]

orthogonality: "But of course, he won't. Because that wouldn't be safe, and incrementalist and bipartisan."

Though I basically agree with you, how much of this is our own projections of strong leader/father? I assume you've seen Simon Scharma and Relieved? LBJ, who moved important legislation in his first six months, is a model for our strong leader.

However, besides having been an extremely experienced, iron-handed Senate Majority Leader, and knowing where all the bodies were buried:

1964 Presidential Election (checkout the Red States)

Johnson's 22.6 percentage point-margin of victory in the popular vote
is the fifth-largest such margin in Presidential election history.

And The Senate was 68/32. All those things probably made things easier.
posted by psyche7 at 3:50 PM on January 21, 2010 [1 favorite]

We are going to talk with bipartisan Congressional leaders

Fuuuuuuuuuuuuuuuck! I am SICK of hearing Democrats use the word "bipartisan"!

When the hell are they going to learn that to the Republicans "bipartisan" means doing exactly what they want you to do, with absolutely no concessions or compromises on their part whatsoever; and even when you bow and scrape before them and give in to every one of their demands, they're still going to go on Fox News and other arms of their media machine and badmouth you to the public?

How many fucking times are you going to try to kick that goddamned, football, Charlie Brown?!!!!
posted by lord_wolf at 4:04 PM on January 21, 2010 [21 favorites]

Then I remember that few people ever develop completely different personalities at age 48, no matter how much is at stake.

Dennis Miller was born in 1953, which made him 48 in... 2001. Huh.
posted by Combustible Edison Lighthouse at 4:12 PM on January 21, 2010 [3 favorites]

Fuck... I just don't have anything to say. Twenty years from now, the income inequality in the U.S. will be on the order of a 3rd world country.
posted by notswedish at 4:42 PM on January 21, 2010 [6 favorites]

No, but if you're on the board of a Chinese company who's running attack ads against candidates who support a carbon tax, you should watch out.

What about a Chinese company that owns 10% of Exxon? What about Pepsi-Co with it's Indian CEO? That's the whole point. Corporations are trans-national. There is no such thing as an "American" company in terms of the actual money, shareholders, directors, etc.

No, I mean we can do that, because foreigners outside the U.S. have fewer protections under the U.S. constitution than people inside the U.S. (and in some cases, foreigners inside the U.S. have fewer rights than citizens inside the U.S.).

Despite what Lou Dobbs might say, that's not true at all. There are some privileges that citizens have, and only citizens can vote. But other then that, all the same rights apply.

How about this? I set up an American-owned corporation which sells $5 pieces of paper to foreigners, perhaps on ebay. Each piece of paper guarantees that the corporation will spend $4.50 on advertising to influence a particular issue or candidate. The money is funnelled through Chambers of Commerce and thus cannot be traced back to the corporation.

Foreigners can already donate to the ACLU. They can already push issues but now they can advertise for (and against) candidates directly. That's a lot more direct.

---

What we need is for more liberals in corporate power structures. Since corporations are becoming more and more powerful, really the only way to get power is to take control of corporations. Maybe there should be some kind of club, like the federalist society is for rightwing crazy judges like the ones who wrought this ruling. Actually Tony Blair was a member of the Fabian Society designed to bring about socialism over the long haul. But obviously they just became corporate stooges, and Blair is dreadful on civil liberties. And the whole thing seems quite elitist.
posted by delmoi at 5:26 PM on January 21, 2010

Someone made the point just now that this Supreme Court ruling explicitly politicizes corporations. It's interesting to note that Google, Apple and Microsoft all have fairly liberal credentials (for some values of 'liberal').
posted by unSane at 5:33 PM on January 21, 2010

I'm going to address the suggestions that corporations are, by their nature, bad; and that it would be feasible to dispense with them. This is to explain why we have corporations, and what would happen if we got rid of them. It's a simplified explanation, so please don't feel the need to say "but there were corporations a thousand years ago! The Pope is a corporation sole!"

Three hundred years ago there were three forms a business could take. It could be a single individual; an individual employing several people (a "company"); or a partnership. If an individual needed to raise funds for expansion he or she could borrow money and invest it in the business. Partnerships were different - they had no legal existence, and the only way they could raise money was by attracting new partners or persuading the existing partners to invest more money. Partnerships were the only way for a business to grow past an individual's resources - but they had their own limit to growth: joint liability.

Every partner is liable for the business debts of the partnership. The legal phrase is "jointly and severally": if you are owed money for a debt incurred by a partnership you can sue any partner, or a few of them, or all of them - whichever you think is easiest and most effective. You don't need to allocate the responsibility for the debt between the partners; that's their problem. This meant that it was quite dangerous to be in a partnership, especially if you weren't actually involved in the business. So partnerships rarely grew past the point where all the partners were involved. Few people wanted to take the risk that their investment of a few hundred pounds would expose them to total bankruptcy.

The first solution to this was incorporation. At first this (in the UK) required a special Act of Parliament. And it solved the problem, for those few people sufficiently well-connected to form companies. As soon as Parliament started to pass Acts of Incorporation regularly you got all the problems you might expect - speculative companies created for a quick profit by resale, and that sort of thing. But even at this stage, businesses were more typically partnerships.

The excesses of companies meant that many people looked down on them. It was thought shocking that a stockholder could share in the profits but evade responsibility for the debts of the company. Partnerships were thought to be more virtuous, but they were clearly inadequate for businesses that needed to raise large amounts of capital. A third mechanism was needed - the limited liability partnership. As long as one partner had unlimited liability, it was argued, the other partners could have their liability in bankruptcy limited to a declared amount.

The problem is that this was like being only slightly pregnant. If the limited partners had already contributed their capital to the business then they couldn't be called upon for any further contributions. Eventually people realised that the company structure was no worse than a limited partnership and it had several advantages - people could sell their shares, and the lines of responsibility in the business were clearer. And so we ended up with the system we have today. Without corporations every large business would have to close. You might think this is a good thing, but remember that large projects require large amounts of capital. Very few partnerships could afford to build a road or erect an office building. Very few people would be willing to join partnerships that are geographically distributed - they might be forced into bankruptcy by a single dishonest partner in a distant city. So you would have no large businesses, and no businesses with offices in more than one state.

I guess it's possible to argue that this might be good, but it would be a very radical change to the system we have today. At the very least, the process of adjustment would be an unparalleled upheaval, worse than anything experienced before. So while it's reasonable to say that there ought to be restrictions on corporations, any suggestion that we could do without them is naive.
posted by Joe in Australia at 5:38 PM on January 21, 2010 [3 favorites]

Oh, my. I guess now I'll have to vote for whoever the corporate bigwigs tell me to!

Now pardon me. I'm off to buy some more Betamax tapes and stock up on OK cola.
posted by oncogenesis at 5:39 PM on January 21, 2010

notswedish: "Twenty years from now, the income inequality in the U.S. will be on the order of a 3rd world country."

In the late 1970s, my family spent a few days as the guests of a wealthy family in San Salvador. I was just a kid - I knew literally nothing about Central America, let alone its political situation.

I remember only a few details of the experience. But in retrospect, they seem telling.

I seem to recall that the walls around the house were unusually high. Their maid seemed strangely nervous. The atmosphere seemed... tense.

Make no mistake. The middle class is marked for death.
posted by Joe Beese at 5:50 PM on January 21, 2010 [6 favorites]

You know, this has some interesting potential for "false flag" dirty tricks, actually. What's to keep people from forming a corporation called "The Buggery and Pedophilia Consortium, Inc." and releasing a commercial that could start something like this:

[fade in to Stars and Stripes backdrop, with white, middle aged man in frame]

"At the Buggery and Pedophilia Consortium, we believe that Mitt Romney shares our values..."
posted by deadmessenger at 6:29 PM on January 21, 2010 [3 favorites]

weston: Perhaps rather than the corporate death penalty, a solution of this stripe might probably involve some kind of seizure/forfeiture of ownership: governing shareholders have the potential to lose some significant part or even all of their investment for certain corporate crimes.

Now that's an interesting thought for a corporate penalty system -- instead of just fining the corporation, force the issuance of some percentage of additional voting shares of stock, to be auctioned off to the public, with the proceeds going to the government. In extreme cases (corporate death penalty), all existing shares of stock could be canceled and new shares auctioned off. In either case, the auction would immediately be followed by a shareholders' meeting.
posted by fings at 6:58 PM on January 21, 2010 [2 favorites]

Don't blame me, I voted for Pepsi-Blue.
posted by furtive at 6:58 PM on January 21, 2010 [1 favorite]

I would be curious whether people who disagree with this ruling also think the NYT lacks freedom of the press (as well as freedom of speech, of course). It's not at all clear to me why corporations would be entitled to one and not the other.

Can the NYT be forbidden from spending money to investigate and report on certain types of stories? If not, why not?
posted by planet at 7:38 PM on January 21, 2010

What I don't understand is why we still need to bother with this outdated "one person one vote" thing. Rich people and corporations are obviously more important to society, shouldn't they have more say? Just let the candidates put out collection boxes, the one with the most money wins.
posted by ropeladder at 7:52 PM on January 21, 2010

No worries! Power is balanced between the three branches of fedral gov't so congress will no doubt enact legislation to repair such a flawed decision.
posted by Fupped Duck at 8:11 PM on January 21, 2010

Jesus.

A year ago today, I wouldn't have believed this current state of affairs was possible.
posted by twirlypen at 8:12 PM on January 21, 2010

Twenty years from now, the income inequality in the U.S. will be on the order of a 3rd world country.

I'm pretty sure it already is. Check out wikipedia.

Based on the "UN Gini" coefficient measure, the US is sitting right around Ghana, Mali, and Senegal.

So if your metric is going to be income inequality, the US is already there.

Of course, some people might focus on another metric, like the global-relative living standards of the bottom 10%, in which case the US would look just fine... but that's another story.
posted by Perplexity at 8:28 PM on January 21, 2010 [3 favorites]

This is a very dark day indeed.

HCR is effectively dead (though perhaps never really alive) and this ruling means that the only hope it will be resurrected is that small and medium sized businesses, who are at the greatest disadvantage with the current structure, somehow will outspend large businesses like pharma and insurance. No hope of that. Unions might have supported it, but in the very near future (starting this year) the public employee unions are going to be tagged as responsible for municipal bankruptcies. This is not undeserved, but it's going to dis-empower and taint unions as a concept for a good decade or more. There's just nothing left.
posted by rr at 8:39 PM on January 21, 2010 [1 favorite]

Personally, I'm looking forward to the Google™ Party joining the scene. At least it might not be evil. I'm not sure that I'm kidding.
posted by parudox at 11:05 PM on January 21, 2010

This decision has the same result as Congress passing a law requiring those with less than $X assets only whisper, while allowing those who pass the means test to shout their views.

Whether it's really what the Constitution intended or not, it's utterly ridiculous.
posted by wierdo at 11:26 PM on January 21, 2010 [1 favorite]

As a non-American, but one who works for The Corporation, or at least one of them, I thought the NYT editorial was particularly well argued. Someone once said 'hope dies last', and I can only hope that this terrible ruling will be over-turned.
posted by vac2003 at 1:38 AM on January 22, 2010 [2 favorites]

I think you guys need some kind of anti-corporate party. You know - something to bring people together against their exploitation by a capitalist ruling class.

Coommu... Commun... Com...

For the life of me, I can't quite remember the name.
posted by lucien_reeve at 2:29 AM on January 22, 2010 [3 favorites]

I was thinking this morning, this would be an ideal time to make a movie out of the novel, Snow Crash...where the government is decentralized and instead franchises, corporations, and the mafia own the streets and cities. Hrmm, Zach Snyder might do a decent job...Michael Bay definitely would ruin it.
posted by samsara at 5:27 AM on January 22, 2010

Can the NYT be forbidden from spending money to investigate and report on certain types of stories?

No. Because it has freedom of the press, which is different from freedom of speech. Both are listed because both are needed, because the Founders didn't think that non-persons were granted freedom of speech, because that's not what they wrote down.
posted by jock@law at 5:43 AM on January 22, 2010 [1 favorite]

So even without this ruling, the best way to influence elections would be for your corporation to buy a cable channel, call it the press, then say whatever you want about the opposition candidates with no spending limits at all.

But that would never happen.
posted by smackfu at 6:01 AM on January 22, 2010 [6 favorites]

This is a split pretty much along party lines with Democratic nominees in the dissent along with Stevens (appointed by Ford).
This. I don't understand how people can complain about the Republicans voting party lines when the Democratics do the same. Just because it's 5-4 and not 4-5?

Who's complaining about "party lines"? People are complaining that the Supreme Court voted to enshrine the right of corporations to spend money, without limit, in direct attempts to influence elections.

The fact that every Justice who voted to enshrine this right was appointed by a Republican president is merely an unsurprising fact of note, and a cautionary tale for the future.
posted by Flunkie at 6:27 AM on January 22, 2010 [3 favorites]

smackfu has it, of course. The oddest thing about NewsCorp, and what is really scary about this, is that under Ailes, Fox attacked Obama even though the Murdoch dynasty supported Obama. In other words, the Corporation followed the money in the face of its founder's avowed opposition. This is, of course, required behavior for a pubicly traded company, whose board of directors have a fiduciary duty to maximize the return to their shareholders. The corporation exists for no other purpose.

To put it another way, although a corporation may occasionally support a liberal or progressive point of view, it will only *ever* do that in the interests of maximizing shareholder value. If the board of directors were to do anything else, they could be sued by the shareholders.
posted by unSane at 6:31 AM on January 22, 2010

The Supreme Court is not intended to be a democratic forum. It's supposed to be the final arbiter on matters of law. If the SC simply votes along party lines, it's completely redundant. You already have a branch of government for that.
posted by unSane at 6:33 AM on January 22, 2010 [2 favorites]

Interesting fact: If Exxon-Mobil had spent the same percentage of their 2008 profits on the 2008 presidential election as I did of my 2008 pre-tax income, they would have singlehandedly spent about 150% of the money that was actually donated to Obama and McCain combined.
posted by Flunkie at 6:36 AM on January 22, 2010 [1 favorite]

"...Someone once said 'hope dies last'..."
posted by vac2003 at 3:38 AM on January 22

That's not a veiled threat to the president, is it?
posted by symbioid at 6:41 AM on January 22, 2010 [2 favorites]

From vac2003's NYT link:
Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.
If that's all we've got, it is a gossamer-thin thread of hope.
posted by Flashman at 6:52 AM on January 22, 2010

I was thinking this morning, this would be an ideal time to make a movie out of the novel, Snow Crash...

Every so often the book gets sent around to a bunch of writers. People are always trying to get Gibson's stuff off the ground ... I've got PATTERN RECOGNITION here that someone sent me. But his stuff really isn't very movie friendly and, in my own view, honestly not that good. NEUROMANCER is supposedly in pre-production with some music vid director at the helm and Liv Tyler in negotiations but I'm not sure how real a project it is. With a budget of $70m and a no-name director it would need a hell of a lot more than Liv Tyler to get financed.
posted by unSane at 7:06 AM on January 22, 2010

SCOTUS: Quality is Job #1.
posted by Eideteker at 8:15 AM on January 22, 2010

Can any of [Grayson's Bills] be passed?

No.

There's a long tradition of junior Congressmen (both Left & Right) throwing up all sorts fringe legislature, which the House dutifully ignores. This is more of the same.

But the real problem is the Senate. There's no way the Senate would pass anything of this sort.

Finally, you have to craft legislation that won't be immediately struck down by the precedent set in the current ruling. I suspect that's a higher bar than most people would think.
posted by srt19170 at 8:22 AM on January 22, 2010

"some music vid director" is Chris Cunningham, and to call him "some video director" is to slight what is, IMO, one of the best music video directors of all time. He's right up there with Spike Jonez.

In fact, it was his video for Autechre's Second Bad Vilbel that really made me go "woah" (bear in mind this was like 96 or so) along with the revolution of the sound I heard.

"Back in 1995, Chris was heading the FX workshop for Stanley Kubrick's A.I. (before Kubrick died and it got sent to Steven Spielberg). According to the Directors Label book, Chris was really getting into film, and Second Bad Vilbel was to be his first attempt at putting his ideas into motion. But his inexperience in directing and editing lead to a messy shoot and disappointment at the loss of such potential: this was a classic track and it deserved a classic video!"
http://www.director-file.com/cunningham/autechre.html

So that's a critique. It isn't uber great, but it was his first film. He did Aphex's "Come to Daddy", which is another classic. I believe he also did Windowlicker, but I may be wrong. That said....

/end derail
posted by symbioid at 9:06 AM on January 22, 2010

Thanks for the info on Cunningham. However to Hollywood he's still just 'some music vid director' since he hasn't got any long form fiction under his belt. Handling narrative is a whole 'nother ball game... some guys who cross over from vids/FX do it amazingly and others not so much.
posted by unSane at 9:20 AM on January 22, 2010

Windowlicker totally counts as long-form fiction.
posted by shakespeherian at 9:26 AM on January 22, 2010 [1 favorite]

Sorry to start the director/movie derail. Was just noticing that sometimes movies, when timed correctly, can really attest to the times we live in and where we might be heading. When corporations have the highest influence in this country, they also RUN this country. While some may see that as not such a bad thing, it really comes down to how valued the invidual (and oft less financially influential) voice becomes. Unchecked, its potentially a country "for the people, by the corporations."
posted by samsara at 10:05 AM on January 22, 2010

I agree. I think the Corporations as persons thing is very ripe. I've long wanted to do a story about two multinationals going to war against each other.
posted by unSane at 10:22 AM on January 22, 2010

@Pastabagel

And the notion that corporations should be shut down if they break a law is insane. When all those people get laid off, who is going to provide them with an income and healthcare? You?

Then maybe they shouldn't be breaking the law.

If I go to jail for robbing a bank, or shooting someone, who will provide my family with an income and healthcare?

Guess I should've considered that.
posted by stenseng at 10:29 AM on January 22, 2010 [7 favorites]

seventyfour: "Excerpts from Stevens's dissent. Taken from here.

* The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907...."

It's almost as if the universe, with a dark sense of humor, was giving us an foreshadowing of what was to come when Pat Tillman was murdered.

(and I ain't even smoked anything today!)
posted by symbioid at 10:35 AM on January 22, 2010

It occurred to me a few minutes ago that perhaps the way to circumvent this ruling is at the state level.

It's settled law that a state can, for example, take away your driver's license for refusing to submit to a breathalyzer. This is because a driver's license is a privilege, not a right. If you exercise your fifth amendment right to not incriminate yourself, they take away a privilege in return.

Similarly, corporations could have their privilege of limited liability revoked for exercising their supposed right to free speech.
posted by wierdo at 3:21 PM on January 22, 2010 [1 favorite]

Greenwald seems to think this was the right decision:

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The "rule of law" means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like. Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme. If the Constitution or other laws bar the government action in question, then that's the end of the inquiry; whether those actions produce good results is really not germane. Thus, those who want to object to the Court's ruling need to do so on First Amendment grounds. Except to the extent that some constitutional rights give way to so-called "compelling state interests," that the Court's decision will produce "bad results" is not really an argument.

More specifically, it's often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that's true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians). The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech -- especially political speech -- no matter the good results that would result from the restrictions. That's the price we pay for having the liberty of free speech. And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.

posted by delmoi at 5:36 PM on January 22, 2010

Greenwald is wrong, IMO.

Neo-nazis and CEO's are citizens and, thus, have free speech rights. Corporations are legal fictions. They can be told to shut the fuck up with impunity. I believe Thomas Jefferson would concur.

And that's before you get into the argument over whether money and speech are the same thing, or not.
posted by Benny Andajetz at 5:47 PM on January 22, 2010 [4 favorites]

Corporations are legal facts, not legal fictions. I heard Barney Frank on TRMS yesterday saying that Congress could simply enact some corporate law requiring shareholder approval of political messages, but its not at all clear to me that it wouldn't go straight to the SC on the same basis as the current ruling.
posted by unSane at 6:32 PM on January 22, 2010

Greenwald is on the dole from the Cato Institute, so of course he thinks this is the right ruling.
posted by saulgoodman at 6:32 PM on January 22, 2010

Yeah, I agree with Greenwald more often than not, and I'll acknowledge that he's forgotten more about Constitutional law than I'll ever know, but I think from a philosophic standpoint he's dead wrong here.

Corporations are not people, they do not have the same rights as people. Restrictions that, if they were imposed on people would be rightly viewed as unconstitutional and violations of human rights, are perfectly fine and dandy to slap on corporations.

I am a free speech fanatic, I will and (online anyway) have defended the right of people and groups I personally despise (the KKK for instance) to speak. I do not see how that means I have to agree that IBM, or Monsanto, or GM has the same right to free speech as real people do.

Corporations aren't people, money is not speech.

I'm also pretty sure that there is a valid line to be drawn between speech and advertising. I haven't thought that all the way through yet, and I may well be wrong there, but right now I'm inclined to think that there is a real and important distinction there.
posted by sotonohito at 6:39 PM on January 22, 2010 [1 favorite]

I just don't understand how this doesn't violate the Federal governments authority under the commerce clause.

Any company that does business across state or national borders under the constitution is subject to Federal regulation, with the congress having authority to make laws regulating its conduct. They can regulate interstate companies however they like under the constitution.

Well, most corporations do business outside their states, and any company buying national advertising on behalf of a candidate or party is clearly doing business across state lines.

When a company buys advertising, is that now considered protected free speech under this ruling? If so, then we are in serious trouble, because this ruling effectively invalidates every FCC and FTC restriction on advertising because it holds advertising on behalf of a company's financial interests to be protected political speech.

How would that protection not also now extend to drug companies who sponsor TV ads that make false claims about the efficacy and safety of their products? What is the legal basis for distinguishing between advertising meant to influence a political outcome in a way that maximizes a company's profits and other forms of advertising on behalf of a company? If one is a form of protected speech under the law, why isn't the other?

Doesn't this stupid ass ruling also in effect invalidate any laws that prohibit companies from advertising whatever else they want to, whether it's political in nature or not? If the companies now enjoy free speech protections, and advertising for commercial purposes has been elevated to a form of protected speech?
posted by saulgoodman at 6:45 PM on January 22, 2010 [1 favorite]

I'm also pretty sure that there is a valid line to be drawn between speech and advertising. I haven't thought that all the way through yet, and I may well be wrong there, but right now I'm inclined to think that there is a real and important distinction there.

We're thinking along exactly the same lines on this.
posted by saulgoodman at 6:46 PM on January 22, 2010

Corporations are not people, they do not have the same rights as people. Restrictions that, if they were imposed on people would be rightly viewed as unconstitutional and violations of human rights, are perfectly fine and dandy to slap on corporations.

I am a free speech fanatic, I will and (online anyway) have defended the right of people and groups I personally despise (the KKK for instance) to speak. I do not see how that means I have to agree that IBM, or Monsanto, or GM has the same right to free speech as real people do.

Corporations aren't people, money is not speech.

While you may feel that way, obviously the supreme court has a long history of viewing corporations as people from a legal perspective.
posted by delmoi at 8:19 PM on January 22, 2010

I completely understand why this is a troubling result. But I think this case is far more complicated than the black-and-white view a lot of comments here seem to hold. I note that, for example, a lot of constitutional scholars who have the utmost respect for the law and have shown themselves to mostly be on the side of the angels reluctantly conclude that the majority got this one right.

The New York Times is a corporation which happens to publish a newspaper. Miramax and the Weinstein company are corporations which made Fahrenheit 9/11 and Sicko. And so on. I'm not sure one can draw a real constitutional line saying that it's okay for the Weinstein company to make a movie harshly critical of the american health care system and calling for it to be overhauled in specific ways but that it isn't okay for Aetna or whoever to fund a commercial opposing those specific ways.

Again, I totally get that there may be quite a few problematic effects of this decision. But that the effects of the decision are problematic does not make it necessarily the wrong one; the Constitution has been amended in the past to fix broken parts, and this may be another broken part that needs to be changed. That something is good does not make it constitutional and that something is bad does not make it unconstitutional.
posted by Justinian at 8:59 PM on January 22, 2010 [1 favorite]

You may be right, Justinian, but if corporate speech really is constitutionally protected then it is very hard to see how any legal limits on advertising (eg via the FCC) can be maintained. Truth in advertising then becomes simply an issue of tort; an entirely civil matter. If I want to say that my snake oil cures cancer, surely that's freedom of speech? If it doesn't, sue me.
posted by unSane at 9:12 PM on January 22, 2010 [1 favorite]

...../....
posted by moonbird at 9:15 PM on January 22, 2010

If I want to say that my snake oil cures cancer, surely that's freedom of speech? If it doesn't, sue me.

If you're selling snake oil? Sounds like fraud to me.
posted by Justinian at 9:33 PM on January 22, 2010

Okay, fraud, whatever, but the FCC get to butt out, no?
posted by unSane at 9:35 PM on January 22, 2010

Sadly, I think it may be time for a new Constitution.

I would be happy about that, given that opinions on it seem to have mostly devolved to the level of reading tea leaves at this point, but given the political climate we have these days, any new Constitution would probably be far worse than the one we have.
posted by wierdo at 9:44 PM on January 22, 2010 [1 favorite]

I believe that commercial speech can probably be held to a different constitutional standard than political speech. Political speech should probably be about as free as it gets, for obvious reasons.
posted by Justinian at 9:44 PM on January 22, 2010

That's a nice idea, but good luck drawing the line. Since a corporation exists for the purposes of maximizing shareholder value, all of its speech is commercial (if it wasn't, the directors would not be fulfilling their fiduciary duty to the shareholders). The whole effect of the recent decision is that speech is speech is speech and is free. The Founders made no distinction between commercial speech and political speech. Any legislative distinction has to withstand the Roberts court.
posted by unSane at 9:49 PM on January 22, 2010

[and I have to say I sort of agree with the Greenwald position that this decision may well be a justifiable interpretation of the constitution... which would not be such a problem if the probability of amending said constitution didn't seem so vanishingly unlikely]
posted by unSane at 9:51 PM on January 22, 2010

Despite what Lou Dobbs might say, that's not true at all. There are some privileges that citizens have, and only citizens can vote. But other then that, all the same rights apply.

That's demonstrably false. (Sorry for catching this so late.) Citizens need not carry photo ID or provide anything other than their name and home address to law enforcement. The requirement for non-citizens to carry photo ID and proof of citizenship at all times while in the U.S. has not changed at all. Citizens outside the U.S. also have the right not to be spied upon without a warrant.
posted by one more dead town's last parade at 10:04 PM on January 22, 2010

unSane: I definitely understand where you're coming from, but I still haven't seen a convincing way to constitutionally draw a distinction between allowing, say, the New York Times Company to say whatever they want but not allowing Aetna to say whatever they want. It seems to come down to "but we like the NYT saying what they want and not Aetna.".
posted by Justinian at 12:59 PM on January 23, 2010

Justinian, exactly. And this is a conundrum, since the press appears to be given extra rights without incurring extra responsibilities.
posted by unSane at 2:58 PM on January 23, 2010

Is the Supreme Court Decision so Important in a Web 2.0 World?
posted by homunculus at 7:13 PM on January 23, 2010

Justinian: “I believe that commercial speech can probably be held to a different constitutional standard than political speech. Political speech should probably be about as free as it gets, for obvious reasons.”

Sure, and I can see why you feel that way, but where's the Constitutional justification for it? There's no difference made between "commercial" and "political" speech; just "speech," generally.

So in order to get what you're proposing, without distorting or twisting or being generally inventive with the Constitution, I think you'd need an amendment. Which might well be what's required — and in that case, I'd rather have the judiciary enforce the Constitution as written, as ridiculous and destructive as that may be, than try to bend it to current circumstances and short-circuit the modification process built into it (which is intentionally made difficult).

The Amendment process will only ever work if the problem, the Constitutional shortcoming or need for modification, is glaringly obvious, because of the necessary supermajority. That won't ever happen if the USSC is playing nice, finding kinder and gentler ways to interpret a 232 year old document. That might be preferable in the short term, but it's the wrong way to do things. It means that, rather than actually modifying the Constitution where it no longer works, we instead rely on the whims of the judiciary to interpret away the painful bits (or not, as they may be inclined to do).

Regarding free speech and the First Amendment, the correct stance was articulated by Justice Black in Roth v. United States: basically, that "Congress shall make no law...abridging the freedom of speech" means that Congress may goddamn well make no law abridging the freedom of speech, period.

That means no obscenity statues, no vague "national security" statues, nada. Sure, states can get a lot of leeway (that's the downside of Congress shall make no law...), but Congress isn't allowed to do shit. And if they want to start regulating pornography, or seditious speech (cf. Dennis), well then there's an amendment process for that. And if that's too difficult, well, tough, I think he'd say.

That, IMO, is what the USSC ought to do. Damn the consequences, enforce the Constitution. If the public doesn't like the results, they have a process for fixing it, via amending the Constitution — at which point the Supreme Court becomes responsible for enforcing the newly-amended document on the lower courts, no matter how stupid or destructive it may be. To do so is their duty and, ultimately, sole responsibility.

If there is one glaring flaw in our government, which I do not think could have been predicted at the outset, it is this: I do not think it was ever intended that it be easier to stack the Supreme Court with ideologically-friendly justices than it is to amend the Constitution. Unfortunately, that has been the case, and rather than having the USSC be an impartial, perhaps brutal, arbiter of Constitutionality, they have instead become ideologues. As pleased as I am when they happen to decide things in a way that suits me (e.g. Griswold, Roe), I cannot help but realize that things were never supposed to work this way, and that it may one day be looked back on as the fatal flaw.

Our government was supposed to be able to flex, and so survive and respond to changes in public temperament; however, I do not think that 'flex' was supposed to come from the Federal judiciary, but rather from periodic amendments to the Constitution. That members of the USSC have felt it necessary to be so flexible in their interpretations of the Constitution (or, put differently, that they have felt that they are unable to enforce the Constitution literally in good conscience without causing great disruption, i.e., as someone once put it to me, that "only a sociopath could be a literalist") is evidence that something has gone gravely wrong.

I'm not sure where we can begin fixing it, or if it's even fixable, but I do think it's the key error plaguing our entire government at the national/Federal level.
posted by Kadin2048 at 10:52 PM on January 23, 2010

Court's campaign finance decision a case of shoddy scholarship
posted by homunculus at 8:48 AM on January 24, 2010

Risky Strategy Leads to Big High Court Win

(tl;dr version: The crucial turning point in the case was probably when the FEC attorney said that campaign finance laws would, hypothetically, allow suppression of a book. That revelation apparently surprised the court enough that it led to a re-argument, and then to the decision in favor of Citizens United.)
posted by Kadin2048 at 9:16 AM on January 25, 2010

I realize this thread has petered out but I still haven't seen anyone address what are actually the difficult questions here. If Aetna, Bank of America, or Pfizer are not permitted from opining on political matters, what is the constitutional basis for allowing The New York Times Company, the Weinstein group, GE, or Time Warner from presenting views on the same? Keeping in mind that GE owns MSNBC and Time Warner owns CNN and the Weinstein company did Michael Moore's SICKO.

It's not enough to simply not like some companies and not others, one must be able to say why it is Constitutional to deny some rights that others are recognized to have.
posted by Justinian at 10:33 PM on January 25, 2010 [1 favorite]

It's not enough to simply not like some companies and not others, one must be able to say why it is Constitutional to deny some rights that others are recognized to have.

Well, one could argue that the media companies are operating under freedom of the press, which is not the same thing as freedom of speech.

Do you really believe that the people who oppose this decision are just motivated by liking "some companies and not others"? I think people's concerns are much more profound than that.

But you raise an interesting point. Does the right to free speech actually apply in this case?

Perhaps the court has gone beyond its remit. The question at issue was whether or not Citizens United had a right to use the funds in its general treasury to pay for broadcasts in the 30 days run up to the primary election.

The dissent argues that "that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case."

In other words, before we can answer your question, we need to answer the bigger questions of: Is this actually a constitutional question or not? Should it be? If it is, does the constitution answer this question at all? Does it say what you seem to be assuming it does?

None of these are settled questions and speaking with regard to the other posters in this thread, I think they have all done a very good job of grappling with them.

(Personally, I think that this is a fairly radical decision. It should alarm small c conservatives everywhere. And it is a very odd state of affairs where elements of the radical right are in agreement with the ACLU and Glenn Greenwald.)
posted by lucien_reeve at 3:44 AM on January 26, 2010

Ronald Dworkin:

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other Justices who voted with the majority ignored that constraint in their haste to declare the Act unconstitutional in time for the coming mid-term elections.

Citizens United, a small nonprofit corporation almost entirely financed by individual contributions, had made a very negative film about Hillary Clinton. It asked the Court only to rule that its method of distributing that film, on a video-on-demand service, was not outlawed by the Act. It offered several arguments, some of them plausible, for interpreting the Act that way. So the Court did not have to decide whether to overrule the Act: it could have agreed with Citizens United while reserving that larger question. But after they first heard arguments in the case, the five justices declared that they wanted, on their own initiative, to consider declaring the Act unconstitutional. They introduced that unnecessary issue themselves and then scheduled an emergency special hearing during the summer so that they could strike down the statute as quickly as possible. ...

The conservative justices also had to overrule two of the Court’s prior decisions—its 1990 Austin and 2003 McConnell decisions. In his Senate hearings, Roberts declared his great respect for judicial precedent: he said that just because he thought that an earlier Court decision had been wrongly decided or poorly argued would be no reason to overrule it. It would have to have proved unworkable or its basis in principle would have to have been eroded by other intervening decisions. Kennedy offered no evidence that restrictions on corporate electioneering had proved unworkable, which is not surprising because such restrictions had been in place since 1907.

posted by russilwvong at 7:07 AM on January 26, 2010 [3 favorites]

We are all going to burn in hell.
posted by Damn That Television at 11:59 AM on January 26, 2010

O'Connor: Corporate campaign funds could affect judiciary
posted by homunculus at 4:34 PM on January 26, 2010

Justice Alito mouths 'not true'
posted by homunculus at 8:27 AM on January 28, 2010

The other justices didn't seem so pleased at getting called out by Obama either.
posted by smackfu at 11:53 AM on January 28, 2010

Murray Hill Incorporated is Running for Congress
posted by homunculus at 1:58 PM on January 29, 2010

More on the Murray Hill Campaign:

* Press Release
* Video ad at their YouTube channel
* Facebook page
* NYT Economix blog post
* Salon.com article

This is hilarious and sad at the same time.
posted by zarq at 11:34 AM on February 3, 2010

Ban Homosexual Corporate Mergers
God created Mr. Goldman and Ms. Sachs, not Dave & Buster's
posted by Damn That Television at 1:56 PM on February 3, 2010

White House Prepares for Possibility of 2 Supreme Court Vacancies: SCOTUS Watchers Believe Justices Stevens and Ginsburg Could Decide to Step Aside
posted by homunculus at 10:06 AM on February 5, 2010

Google for President
posted by homunculus at 10:17 AM on February 5, 2010

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