Liberate the Corporations?

English: The Bill of Rights, the first ten ame...

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In the United States, corporations are considered persons and hence it was ruled that they are entitled to 1st Amendment rights, specifically freedom of speech. While I have argued in other posts that corporations are not persons, I have also played with the idea of accepting corporations as people and seeing where this leads.

Now, if it is assumed that corporations are persons and are thus entitled to 1st Amendment rights (at least in the United States) it would certainly seem to follow that they are entitled to all the rights of persons. Or, at the very least, the other constitutional rights.

Corporations can, of course, be owned. In fact, common stock is bought and sold as a matter of routine business and provides an ownership share in a corporation. Since corporations are people, this means that people are being allowed to legally own other people. Owning another person is, of course, slavery. While slavery was legal at one time in the United States, the 13th amendment is rather clear on this matter:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Now, if corporations are entitled to 1st amendment rights because they are people, it follows that they must also be entitled to 13th amendment rights. That is, corporations have a right not to be owned by other people. Thus, corporations must be set free from their owners and all such ownership must be declared null and void.

It could, of course, be argued that this is absurd. I agree-but this conclusion follows directly from the same logic used to argue that corporations are entitled to 1st amendment rights. So, if it is absurd for corporations to have 13th amendment rights it follows that it is equally absurd for them to have 1st amendment rights.

It could, of course, be argued that corporations are special sorts of people and are such that they do get 1st amendment rights (that is, they can engage in unlimited spending in politics) but they do not get certain other rights, such as not being slaves. After all, the constitution also includes the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The “other persons” were, of course, slaves. Perhaps corporations can be considered a certain fraction of a person in regards not to representation but to rights. So, they get the all important right to spend money in politics on the basis of being persons while being denied the right not to be owned as slaves. I am not sure what the percentage would be or how this would work out, but I am sure that a clever lawyer could make it happen.

In fact, it  could be argued that enslaving persons is just a return to an old American tradition-only now we are enslaving corporation-Americans rather than African-Americans. This is not to trivialize the brutal treatment of those toiling under the lash of slavers, but to make the point that it is absurd to think of corporations as people.  If it is not absurd and corporations are people, I demand that the corporations be set free!

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49 Comments.

  1. Isn’t it ironic that the corporation, which Mike L thinks is enslaved like African-Americans once were, is the very institution that truly helped emancipate African-Americans.

    African-Americans were lured from the south to northern cities by corporations because of jobs. As a result of working side by side with white Americans, under the auspices of corporations, SEGREGATION against African-Americans was slowly chipped away. And due to this intermingling of blacks and whites, working together, the social pressure it bore engendered government legislation and laws to ameliorate the situation and improve race relations.

    Corporations were instrumental in bring civil rights to America because of their size and need for workers, no matter the race. They had clout. Corporation were the original ‘melting pots’ and facilitators of multiculturalism. I thing that if corporations were not given the statue of ‘individual’ they would not have been able to accomplish what they did in race relations, albeit unintentionally.

  2. Mike, interesting. I think, it is right to consider a corporation as an entity and therefore as a person (& people).

    But where certain constitutions or laws are concerned, where it relates to an entity, thus to a person or corporations, I think, there should be certain exemptions or special provisons.

    These exemptions and special provisions, should seek to serve a worthy ethical purpose. So to my points, corporation should be restricted on lobbying and funding political courses, because, they could corrupt politicians and adversely influence the democratic process.

    But corporations, should be able to be bought and sold (slaves in effect) – because that engenders competion and ultimately should lead to the provision of better production of goods and services.

    People, however, should not be bought and sold simply because any learned, rational person, would agree that they would not liked to be bought and sold like slaves – that’s the Golden Rule applies here – “do onto others what you want others to do unto you” – well for most people

    But the reality is, even in this moderm world, and in the future, Corporation and Persos/People do inadvertently have the 1st Amendment rights. Both are bought and sold like slaves – infact, there is more “slaving” that go on with both Corporation (ecxessive buying and selling of stocks – called scalping or churning) and People (trafficing and prostitution) than, anytime in living memory…

  3. The problem is not that a corporation has the status of a legal person – it would be difficult to for contracts to get signed, for corporations to be held liable for damages and taxes etc otherwise. The phrase ‘legal person’ could be changed, I suppose, if natural persons really cared about this. They could be referred to as, say, ‘corporate bodies’ if natural persons really can’t cope with the conceptual difference. Outside the USA, other common law jurisdictions seem, somehow, to have got by without getting into deep confusion about the rather apparent difference between a legal person (this being a useful fiction) and a natural person. Of course its silly to grant some rights that properly belong to natural persons to legal persons, but the battle to have ‘legal persons’ called something else seems rather a waste of time.

  4. My understanding of the Citizens United opinion is that the guiding principle is that political speech shall not be restricted at all, not that “corporations are persons”. That is, opening the door to restrictions on corporations could result in suppression of political speech by newspapers and other media.

    Be that as it may, if corporations are persons, then they should be liable for criminal penalties such as jail time. Not just civil penalties. But they’re not. I would like to see application of the death penalty, with suitable safeguards against ressurection. Which I emphatically don’t advocate for (human) persons.

  5. Joshua,

    Age is not a defect. As far as being busted, the reasoning seems valid:

    Corporations are persons.
    Persons are entitled to constitutional rights.
    Free speech is a constitutional right.
    Corporations are entitled to free speech.
    Not being owned is a constitutional right.
    Corporations are entitled not to be owned.

    The thing is, as I see it, if we take corporations to be persons in regards to constitutional rights, then we must (obviously) take them to be persons in regards to constitutional rights. Naturally, as I noted, it can be argued that they are not full persons. If so, then why think that they get right X and not right Y?

  6. Pod,

    But corporations, should be able to be bought and sold (slaves in effect) – because that engenders competion and ultimately should lead to the provision of better production of goods and services.

    Could the same reasoning be used to justify human slavery?

  7. Philofa,

    True, it could be argued that the personhood of corporations has good consequences and treating them as persons could thus be morally justified. However, if it is argued that they get right X because they are persons, then it would seem to follow that they would also get other rights that people do as well. That would seem to include the right not to be owned. Now, it might be argued that corporations are only people in a very, very limited sense. If so, it would seem that we would need to define them as something other than people but perhaps as something personish with certain rights that corporate personishes have and rights that they lack (such as not being owned).

  8. Marshall,

    The reasoning seems to be that corporations are persons and hence get that right. As such, as you note, the focus is not on corporate personhood so much as the right of free speech they get as persons.

    Corporations do sometimes get dissolved, which might be considered the death penalty or perhaps murder in some cases.

  9. Mike, no

    Humans have “desire” and “emotions” – corporations don’t.

    And as I’m sure you know – the psychological impact of slavery is huge. People enslaved – can be screwed for life and generation.

    Corporation do not have any desire emotion/feelings – the key points of difference.

    Humans are extraordinary as you know. We are unique – the snag is, we don’t even understand ourselves, even in this 12st Century – we do not know how our brains work.

  10. Shareholders own the stock, but not the corporation itself (Fama 1980).

  11. The article from Another Panacea that Joshua linked to is remarkably trite and unmotivated.

    It gets off on the worst foot by lecturing the NYT about the legacy of corporations as persons. That was not the issue involved in the initial NYT article, which was concerned entirely with the corruption that is suggested by the conflation of free speech with corporate donations.

    To justify the ruling, the author argues: “Why censor Hillary: The Movie but not a 60 Minutes piece on George Bush’s National Guard service? Clearly they’re comparable.” The author complains that there cannot be a principled distinction between the two kinds of cases. But there is a principled distinction: 60 Minutes (CBS) is not solely dedicated to destroying the legacy and reputation of a political figure. As such, there is a credible prime facie case to be made that the expenditures made by CBS (and, to a lesser extent, Fox or MSNBC) are independent. No similar remarks can be made for Citizens United. So even if you believe that the decision about free speech was the right decision, this was an absolutely terrible case to do so.

    The blog post then admits that financial corruption of the political process is ongoing, but that the ruling will really have no effect on that because money is already all over politics regardless of the ruling. The author then asserts, “as a society, we’ve decided that having money in politics is good, because it allows challengers to unseat incumbents.” It is hard to square this claim against the NYT article, whose point was to show how America has made the very opposite decision: “In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.” Of the two, I’m rather more convinced by the NYT authors, since they actually give illustrations and examples, and don’t just blandly assert a contrary position.

  12. POD,

    I would agree that corporations lack those traits-because they are not persons but legal fictions.

  13. Benjamin,

    As you note, there does seem to be a clear basis (at least in many cases) for distinguishing between various cases of speech. For example, it is usually relatively easy to distinguish between advertising and non-advertising. It also seems reasonable to limit certain types of expression in some contexts. For example, my students are free to use class time to express ideas, but Coca Cola has no right to expect that I would allow students hired by them to pitch Coke during class time.

  14. Mike: your argument depends on two equivocations: “person” and “slavery” are both used in different or non-standard ways. “Legal personhood” is not the same thing as “natural personhood,” and in any case we do not “enslave” corporations or their officers: a shareholder owns shares in corporations that obligate their officers to behave with certain fiduciary duties towards them.

  15. Benjamin: You claim that Citizens United was not “independent” in the same way as Fox News. I found that confusing: are you claiming that Citizens United was working with Barack Obama to win him the primary? This seems unlikely, as they’re a conservative non-profit, and they promptly produced an anti-Obama documentary when he won the nomination. That tends to militate against some kind of coordination with him. How are they different than Michael Moore or Fox News?

  16. By ‘independent’, I don’t mean ‘independent from Obama’, I mean ‘independent from any political campaign’, which is what McCain-Feingold demanded, and what Citizens United challenge. In this case, there’s the issue of CU being ‘independent’ from the Republican Party; they’re not.

    Why aren’t Citizens United independent from the Republicans? Because Citizens United (like Current TV) has the clear sole purpose of putting forward the Republican ideology. By contrast, Fox News or MSNBC are borderline or mixed cases, since they at least have the pretence of having other non-partisan purposes. Essentially: Citizens United is awful at covering up the fact that they’re doing political advertising, while Fox News and MSNBC at least make an effort to pretend that they’re not the media arms of political parties. And while this distinction is ethically awful (since it already produces a loathsome equivalence between Fox News and MSNBC), it’s certainly a crystal-clear way of distinguishing the two kinds of cases.

  17. I phrased the above post poorly. I should say, Current TV has a clear partisan preference for the Democrats (in case that wasn’t obvious). Citizens United has a clear partisan preference for the Republicans.

  18. I am simply following the logic of the argument in which corporations get rights because they are people. I do agree that legal personhood and natural personhood are not the same. After all, anything could be a legal person simply by passing the right laws, but actual personhood would seem to require meeting whatever the correct conditions for being a person might be (reason and reflection, etc.).

    Corporations are owned and owning persons is slavery. So, if corporations are people and are owned, they would be slaves.

  19. I think it’s legitimate to ask whether or not corporations are in a state of servitude. The categories, ‘artificial person’ and ‘real person’, are both ‘persons’ in the sense that they both have rights and duties. Since ‘the state of being owned’ and ‘the state of being a slave’ have a non-trivial substantial connection when it comes to real persons, it’s perfectly natural to ask whether or not any such connection can be made for artificial ones.

    There is still a crucial difference between ownership of artificial and real persons: namely, that there would be no corporation if it were not owned, while slaves remain people once they are free. In some important sense, ownership is what constitutes a corporation. And it’s pointless to ask whether or not a thing would be more free if it were less like itself. Asking “What would a free corporation be like?” is as self-defeating as asking “What would I be like if I were a bird?” The answer is: “I wouldn’t be like anything, because whatever that bird is, it couldn’t be me.” Humanhood is essential to me, and being owned is essential to being a corporation. If you take my right to my humanity away from me, you destroy me; if you remove the corporation’s right to be owned, you destroy the corporation.

  20. You don’t own a corporation, you own its stock. This is an important distinction that I pointed out in my comments to the last post, but Mike’s not paying attention. One of the reasons corporations count as separate “persons” is because they have the right to self-governnance through a charter and board of directors. Therefore, there are major limits to what shareholders can demand of a corporation: generally, shareholders only have the power to elect directors, approve amendments to the articles of incorporation, and approve “fundamental transactions.” What’s more, there are non-stock corporations: these are wholly governed by members, whose admission to the non-stock corporation is detailed in the articles of incorporation.

    Amusingly, Citizens United itself is a non-stock corporation, as are all non-profits.

  21. Joshua,

    I’ll admit that I am not an expert on corporate law, but the existence of government owned and privately owned corporations would seem to indicate that they are owned by someone. Perhaps this is shorthand for “the government owns the stock in the corporation but the corporation is not itself owned”, but it seems that corporations are owned. But, I could be wrong about this.

    Also, it seems that when one owns stock in a corporation, that involves owning the corporation. But there could be, as you note, an important distinction between owning stock in a person and owning that person. Friends of mine in business and law speak of buying and selling corporations, but perhaps they are mistaken or also using shorthand when referring to such things.

    Given that corporations are governed by boards and stockholders (for certain corporations), where does the actual person hood and agency of the corporation reside? To use a horror analogy, it sounds like a corporation is a legal shell (on par with a mindless body, like a zombie, golem or robot) that is being controlled by other people that direct this mindless shell (like a necromancer might direct her zombies). As such, a corporation seems less like a person and more like a thing created by people for specific tasks (such as crushing enemies). Sure, the people directing it are people, but the golem is just a thing.

  22. All of that is fine, and it certainly speaks against the idea that the relationship between corporation and individuals is one of unique masters and slaves.

    But that doesn’t mean that it’s from the outset unreasonable to talk about the state of being owned as a kind of servitude. You can be slave without a single, unique master. Suppose, for instance, people were allowed to own parts of my body. Suppose, also, that nobody has the right to destroy those parts that they own; they only have the right to buy and sell them, and to direct me how to use them. e.g., if you own my kidneys, then you get to tell me that I ought to drink only water, and I am forced to oblige. (For all circumstances where I am not directed in this way, I get to make decisions for myself; e.g., if nobody owns my pinky finger, then I might burn it or chop it off.) Suppose you only own my kidneys. In that case, it would be incorrect to say that you are my master; all you get to do is say, “Don’t drink alcohol, it will hurt the kidneys”, and I have some amorphous obligation to obey. But it will still be the case that I am enslaved.

    You could object by pointing out that the entire point of a limited liability corporation (for-profit, obviously) is that its duties to its shareholders are too amorphous to count as ‘slavery’. You’d be right to do so, since the for-profit corporation’s fiduciary duties to shareholders (let alone stakeholders) is pretty pathetic. But, in making that concession, you’d have admitted that corporations are more like masters than they are like slaves. Hence, no matter what you’d say, the language of ‘slavery’ would not be thrown out the window as a priori absurd.

    And roughly the same point can be made, with a straight face, about non-profits — or, for that matter, any organization at all. The board of directors of a non-profit corporation is something quite like a homuncular theory of mind. If you fired the board and never replaced it, there’d be no corporation left; and in the same way, there’d be no mind left if you took all the homunculi away.

    These are, of course, goofy science-fiction and fantasy analogies. But what’s charming about them (if they are at all charming) is how easy they are to make. Indeed, that appears to be the reason why we bother talking about corporations as people in the first place — because it’s easy to anthropomorphize, and because we want to use this language of rights and duties.

    That having been said, at the end of the day our choice of rhetoric is optional and often becomes historically obsolete. e.g., “Sovereign” is a fancy old term for an artificial person, which we find in Hobbes and subsequent writers, but which presently seems like an antiquated way of speaking about a particular role in an institution. When we lost the conception of the state as a person, the state did not collapse. So if tomorrow we were to say, “corporate personhood misrepresents the extent to which we want corporations to be autonomous”, we could do that, and the corporation would not necessarily collapse. But I think the corporation certainly would need to start defending its right to exist using reasons, not metaphors.

  23. Benjamin: The last few paragraphs of your comments seem to me to be exactly correct. This is also the sense expressed in that 1830 case:

    “The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burdens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=29&invol=514

  24. It seems one can have a perfectly reasonable difference of opinion and discussion about whether – and to what amount – a corporation may make contributions to political parties.

    What seems rather silly is that from the fact that a legal fiction – useful ever since the separation of ownership from control and necessary for all sorts of reasons – is referred to as a ‘person’ one concludes that it has some of the rights guaranteed to natural persons by the US constitution.

    One may recognise this is an absurdity and still demand robust freedom of speech for corporations (which they already had without referring to the 1st amendment) and that they be allowed to make political contributions that they think will benefit the corporation and its stockholders.

  25. The right of free speech stands on its own; personhood doesn’t enter into it.

    “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.”

    The court’s opinion (you could read it) is that
    “Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ ”
    … which the corporate expenditure ban failed to meet. Personhood didn’t enter into it. This is an interesting discussion in some respects, but maybe you should motivate it from the ability of corporations to sign contracts.

  26. Yeah, in a discussion of Citizens United alone, personhood is a little bit of a red herring. But only a little; the metaphor of personhood is still potentially a wedge that can lead people to mischaracterize the relationship between corporation and other rights. The fact that it is so easy to exploit the metaphor of personhood for devious ends is reason enough to abandon the metaphor. But a rejection of the metaphor will not necessarily impugn the CU ruling.

    Anyway, if someone wants to make an argument for free speech in a Citizens United style case, they must argue that the people who work through Citizens United have had their rights violated. That is, they have to argue that (as Marshall quoted) the McCain-Feingold restriction on speech using corporations as a means does not “(a) further a compelling interest and (b) is narrowly tailored to achieve that interest.” The compelling interest, in this case, is anti-corruption, understood in terms of a prohibition of independent contributions to political campaigns by corporations.

    With that in mind, the argument of the author at ‘Another Panacea’ can be faithfully reconstructed along these lines: a) that Americans have decided to saturate their campaigns with corporate money, so the aim of McCain-Feingold is moot; and b) McCain-Feingold is not even narrowly tailored for anti-corruption, since ostensibly there is no way of distinguishing Citizens United from any other corporation. As I suggested earlier, the author at Another Panacea didn’t make the bare minimum of a case for either point. Claim (a) was simply asserted without evidence, which is an unreasonable move by any standard. Claim (b) missed the mark, since there is a very clear distinction between a corporation whose entire purpose is to intervene in a campaign and a corporation which ostensibly has other reasons to exist.

  27. Well, look. I’m the author of that post, and I wrote it a long time ago to make fun of the anti-personhood argument. That argument is just silly and misses the point, as we’ve demonstrated here. I’ve since spent a lot of time reading the case and commentary, and deepened my analysis, but I still think the case was rightly decided. If BCRA (McCain-Feingold) had been doing any good, I might hold a different view, but it wasn’t doing any good: corporations and rich individuals had already discovered plenty of loopholes and spent about $7 billion between 2006 and 2008. Although it looked like 2010 would be an aberration, and some money shifted from party and candidates to independent expenditures, it turns out to have been about on trend: 2006 was the previous high water mark, because of all the liberals spending to reduce the power of Bush. 2010 was another record, this time conservatives spending to reduce the power of Obama, but that’s the trend.

    These days, though, I agree with Lawrence Lessig that the best solution is not to ban speech but to amplify the speech of those who are least well-able to speak through public financing of elections, hopefully through election vouchers that allow citizens to direct contributions themselves. While preventing corruption and ensuring “democratic integrity” are legitimate government interests, it’s quite clear that BCRA was not narrowly tailored to achieving those interests: the interest itself is overbroad, because the same interest could be used to justify restricting the speech of newspapers, cable news, and any other institutions with outsized power in our political economy. As I said in the post, I think the best line of argument is actually the “shareholder protection” interest, and that forcing companies to seek shareholder approval is a better fit. (This still wouldn’t affect Citizens United, though.)

    Two corrections: first, I never said that Americans had decided to saturate their campaigns with “corporate money” but just with money in general: a lot of that money comes from individuals, unions, and other non-profits. Second, BCRA really isn’t narrowly tailored to anti-corruption: it’s both overboard (uses justifications that could cover media companies) and over-narrow (doesn’t restrict a lot of sources of cash that the anti-distortion rationale really ought to catch.) In that sense, it actually fails the third test in “strict scrutiny”: it’s not the least restrictive means necessary to address the legitimate governmental interest. The LEAST restrictive means would be public funding.

  28. Thanks for revisiting the issue, Joshua, and clarifying that your point about campaign financing. It could be that, as a matter of fact, McCain-Feingold was a useless piece of legislation. We’ll see what happens in the 2012 campaign. It might have also failed to measure up against various other metrics, like strict scrutiny. Fair.

    Still, if your point was not specifically about corporate donations, but donations in general, then it sounds peculiar in that context. You would think that, in a discussion of the NYT article and of McCain-Feingold, we would only be talking about corporate donations. The issue of donations in general is a non-issue.

    One of the things that a court has to do, when confronted with a piece of legislation, is square the intent of the law with particular cases. When one looks at the way that the majority opinion has been reported, one finds a recurring insistence that there is no practical distinction to be made between CU and other media companies. Yet the way that these reports on the decision are phrased, makes it seem as though the intent of the law was to say that there is such a distinction in principle. If so, then isn’t it the business of the court to make the law more precise in practice — for instance, by distinguishing between media companies which have varied purposes (e.g., Fox News), from those which are strictly ideological (Citizens United, Dog Eat Dog Films)?

  29. Actually, the issue isn’t donations at all: we’re talking about “electioneering communications” and issue advertisements that are independent of particular candidates. Though one other way that BCRA was a bad law was that it massively increased the amount of money that candidates can receive directly from all sources.

    You keep saying that Fox News is distinguishable from Citizens United, but they’re about the same age and they’ve always had the same purposes. I’m not really sure why you’re giving Fox an out here just because they also do the weather and sports news. After all, if that’s the only standard than Citizens United can just start a blog about soccer and be in the clear, or Fed-Ex can add political endorsements and weather forecasts to its package-tracking site. If you’re willing to accept Fox’s bad faith efforts, you’d have to accept those as well.

    I just think restricting speech is the wrong way to deal with this issue: criminalize actual corruption, and then find positive methods to increase the activity and power of ordinary citizens rather than trying to restrict someone else: this is a classic case for dealing with the threat of coercion by enhancing positive rather than restricting negative liberties. That’s exactly what Sen and Nussbaum have in mind when they invented capabilities theory.

  30. I keep saying that Fox News is distinguishable from Citizens United because Fox News ostensibly provides content that is non-ideological (that is, news). If they stopped doing that, then they’d be in the same category as Citizens United and Dog Eat Dog films. Their age is irrelevant, and their real agenda is irrelevant. The issue is what they purport to be and what their practices are — that’s crystal clear.

    I don’t give Fox an out willy-nilly; indeed, as you might suspect, I think NewsCorp is in the sewage business. And yes, for the sake of argument, I’ll gladly concede that if Citizens United were to start blogging about soccer, they would sit on the safe side of the line.

    But I get to do that in this context because such concessions are irrelevant to the point I’m making. In all this, I’m responding to a narrow claim, that “There’s just not a principled way to make the distinction [between MSNBC et al. and CU] stick.” I deny that. I think you can regulate the speech of persons who make use of a company in order to advertise a partisan ideology during the weeks leading up to an election, without this restriction resulting in a libertarian armageddon. Hence, my aim was to suggest to you that the Citizens United case was an awful test case, since there’s a clear standard to distinguish CU from the rest of the press.

  31. If you’re willing to bite the bullet on soccer blogging, I’m not sure there’s much more for us to discuss. You seem to have concluded that advertising a partisan ideology in the weeks leading up to an election is a bad thing, but I don’t think you have to be a libertarian to think that political, partisan speech in the weeks running up to an election is at the very heart of democracy.

  32. If you see corporations in that light then the same would be true of labor unions. I see them as slave owners. Just my comparison.

  33. There’s no bullet to bite when the point is so narrow. And the point is just this: if you acknowledge that there are clear conditions that can have us distinguish CU from the rest (contrary to your initial claim), you should acknowledge that CU was a problematic test case.

  34. That’s not how strict scrutiny works. You don’t look for any possible distinction no matter how fatuous, because that has “chilling effects.” People worry that if they let their soccer blog lapse or fail to offer the right level of commentary, they’ll be guilty of a felony. You’re thinking of the rational basis test. Read the Kennedy and Roberts opinions to see the chain of argument that leads them to conclude that the case could not be decided more narrowly than it was. Certainly this is disputed, but not in the way you’re suggesting: the big procedural dispute Stevens points to is whether the court could have carved out an exception for non-profits but left BCRA in place for for-profit corporations.

  35. I’m not American so forgive me if this is completely wrong, but isn’t a corporation a legal fiction representing the property rights of owners which does (should?) not have many of the rights of a person because it has few of the obligations or limitations (e.g. no jail for theft or manslaughter, lower taxes, limited liability etc. etc.)?

  36. The effects of the legislation might result in effects that we consider chilling (in a non-technical sense of the phrase), but not because the proposed interpretation is fatuous. Rather, it would be because you might not agree with the legislation itself (and, indeed, you clearly don’t).

    The fact is, we’re not talking about a random Republican shmoe who has both a soccer blog and a Republican blog, and who lets the soccer blog lapse, and worries about being accused of a felony. That’s a red herring. We’re talking about the material products of incorporated bodies who owe their existence to the state. Put in that light, it seems to me that the chilling effects seem quite a bit less chilly. Do you disagree?

  37. Do I disagree that “incorporated bodies” “owe their existence to the state”? No, though it seems odd to say that citizens may only work together using incorporated entities so long as they agree to give up their rights to work together on issues of political importance. Do I disagree with your proposed rule for distinguishing media companies from other corporations? Yes. For one thing, the law only requires that there be some “periodical publication,” not that it be of a non-political nature. Congress recognized that the First Amendment could not require this kind of “soccer blogging” exception. Thus, The Nation is not obligated to carry book reviews of recent fiction in order to duck this law, and if Citizens United had billed Hillary: The Movie as the first part of an ongoing series on Democratic politicians it could also have passed the test.

    But even this distinction between “periodical publication” and “special issue report” (as in MCFL) strikes me as troubling. The mere presence of a distinction doesn’t mean that the distinction is principled: for that we look to the “narrowly tailored” and “least restrictive” predicates. As the majority points out, any law that requires you to hire a lawyer and seek regulatory pre-approval before engaging in timely political speech is likely to fail these tests.

  38. Keddaw,

    In the States we seem to be engaged in the reification of our corporations (see, for example, Mitt Romney’s remark that corporations are people). Much of the fight is, however, the influence of corporations in politics. Some folks are concerned that people can form corporations and use them to subvert the democratic process via unlimited spending and lobbying.

  39. Mike, yeah, but the part I was slowly getting to was that since different levels of corporation have different legal statuses they should also have different legal limitations. Mom and Pop’s store can lobby all they want because, at the end of the day, Mom and Pop can be sued for all they own and go to jail for what their company does; GE can’t.

    My quick fix, given the state we’re in, is that any corporation with limited liability is absolutely banned from directly, or [blatantly] indirectly, influencing legislators or regulators. If you want to do that then the owners have to be liable for all they’re worth.

  40. I’m going to say something that you’re going to dislike. I’m coming at this from a philosophy of language perspective, not a legal one, which means that in a sense what I’m about to say is banal; but what is banal in the real world turns into armageddon in the legal one.

    The meaning of what is said depends in large part on the history of the person who says it. If CBS News produces something like “Hillary: The Movie”, it is different from when Citizens United does it. This is not because we like CBS, but because — as I hope you’ll agree — Citizens United’s whole back catalogue is made up of partisan propaganda. Their history is a guide that helps us to establish that their film is “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.” (And notice, the standard I suggested — of looking at the history and purposes of the company — helps us to distinguish between partisan propaganda and merely ideological propaganda. Merely ideological propaganda would still be exempted by the FEC rules.)

    Of course, the history of a company is not a set of necessary and sufficient conditions for determining what particular message counts as partisan as opposed to ideological. It’s an indicator, a heuristic, a guide for interpretation. It may not be enough in itself, but it seems to be enough to throw this case out, considering the lack of mitigating counter-conditions. What do you think?

  41. I think you haven’t done your research. No one disputes that Hillary was an exhortation to vote against Clinton. There’s no interpretive mystery here. The question is whether censoring electioneering communication by non-media companies is in violation of the First Amendment. In that case, the mitigating counter-condition is that “Congress shall make no law… abridging the freedom of speech.” Specifically, the question is whether there’s a principled way to justify the exemption for periodical publications. There, the mitigating counter-condition is that “periodicalness” is irrelevant and creates a speaker’s identity-test that is not narrowly tailored to legitimate government interests or the least restrictive means of achieving the same.

    Here, I have an argument about philosophy of language I wanted to try out on you. Isn’t it true that “A Nice Derangement of Epitaphs” is actually a Rolling Stones lyric about buying drugs? What do you think?

  42. Keddaw,

    It does make since to link responsibilities and liberties.

  43. You’re right, I should do more research. It’s an interesting subject. I am glad for the opportunity to discuss it with those who are informed.

    I had thought, on the basis of what you had written, that it was of some concern to us whether or not politically oriented communications produced by media corporations in general would fall under the category of electioneering communications. I gave one example of a criterion that would moot that concern in practice, by looking closely at the identity of who is doing the saying (or, to be more specific, the paying for the saying). It is on the basis of your professed skepticism on this matter that I advanced a criterion that helps us identify an electioneer when we see one.

    But the criterion I proposed is admittedly pretty strong in various respects. And if you have an ideological distaste for the periodicality criterion associated with the MCFL precedent, as you do, then you’re definitely not going to like what I proposed either. So I can see why you might think of them both as bad criteria, i.e., due to the narrowness argument. But I cannot see why you might think of these criteria as irrelevant. Even if you think it fails the legitimate government interests test, you should nevertheless be able to see how (e.g.) periodicality is a typical condition in the establishment of the identity of news-media. That is to say, it ought to be recognizable as a feature of a syndrome, not as a necessary or sufficient condition.

    You can certainly ask whether or not curbing electioneering during the run-up period runs counter to the First Amendment. As I suggested before — echoing Stevens — I do not think that any attempt at regulating electioneering must run afoul of the First Amendment, unless we are absolutists about it. Stevens’ dissenting opinion is laborious in its efforts to dissuade us from absolutism, but I would put an accent on two points he makes in particular. The first reason is that speech can be restricted in certain contexts, times, manner, and place — for example, laws against signage on election day. Second, the historical fact that the US has a history of regulation of corporate contributions. This latter point was the thing that the NYT remarked on, and Stevens remarked on, and which you appeared to counter in the initial post.

    I don’t know if Davidson was a Stones fan. Could be.

  44. “the criterion I proposed is admittedly pretty strong in various respects”

    Two issues: this wasn’t the criterion in the statute itself; this is not a content-neutral criterion. They’re related: Congress chose not to regulate intent and effects in the way you’re describing because such restrictions were explictly barred by Buckley v Valeo and re-barred by FEC v. WRTL. Content-neutral bans like time, place, and manner are judged under a lesser standard, but they have to be shown to have no disparate impact and leave open “alternative channels of communication.” Anything tied to intent or purpose is going to fail this test.

    As for Stevens: that opinion is brilliant, but you need to read the rejoinders from Kennedy, Roberts, and Scalia. Kennedy absolutely succeeds in showing that the anti-distortion rationale in Austin and McConnell is an extension of anti-corruption justification in Buckley, that buying access is just as bad as buying votes, that shareholder protection could be an alternative means of achieving the same end, and that the appearance of “democratic integrity” is a legitimate governmental interest.

    However, he also brilliantly ignores the other requirements: does BCRA use least-restrictive means? Does the FEC restrict activities that aren’t actually part of the legitimate governmental interest? (Why is speech a felony where corporate officers face jailtime? Why not attach a treble fine for spending? Is this makework for election lawyers? Could public financing solve this problem without censoring political speech at all? Are the bureaucratic loopholes large enough that BCRA has a disproportional effect against small as compared to large corporate speakers?)

    The disagreement between Scalia and Stevens on history is particularly interesting: Scalia’s opinion is only nine short pages long, so it’s worth reading in full. I think he does show that the Founder’s distaste for incorporation was tied to a very different kind of corporate personhood, and ultimately rooted in state-granted monopolies, not to the features of modern corporations. (We’re equivocating if we treat the Founder’s statements as if they refer to the same kinds of entities of concerns without translation.)

    That said, part of what you’re missing is that Kennedy would have ruled in favor of Citizens United too, only on narrower grounds. The right legal distinction for Stevens is between CU, Dog Eat Dog films, and other non-profits with a partisan purpose that are funded within an expanded definition of MCFL (i.e. very little “big money”) and for-profit corporations like Walmart or Fedex. He may well be right that this would have been a workable, though easily side-stepped, distinction. But since it’s so easily side-stepped, I think it’s reasonable for the Court to demand that Congress come up with something that is both workable and effective.

    You’ve got me pegged as an ideologue: I’m not. But in this case Congress wrote a bad law that didn’t address the problem, declared victory, and then proceeded to run some of the most expensive campaigns (06 and 08) in history. The Supreme Court merely pointed out that they were fibbing. In a sense, Kennedy is like a medical second opinion: he affirms the diagnosis and prognosis, but then fails to evaluate the prescription. People of all ideological stripes ought to be glad of that: let’s get to work fixing the problem for real this time.

  45. Thanks for the further thoughts, and for taking the time to reply. This is all quite a bit more helpful than the initial article. I’ve only read Stevens, and have yet to read Kennedy.

    I didn’t mean to say you were an ideologue in the pejorative sense of that term. I meant to say you ideologically disapprove of the way the law went about what it did. This was a reference back to your stated preferences in favor of the capacities approach. Sorry that that was unclear.

  46. Thanks. I guess I can see that way of using the term, though I prefer “principled” to “ideological,” given the association of ideology with class consciousness in Marxist thought.

    One important typo from 8:55 AM. I wrote that “Kennedy absolutely succeeds in showing that the anti-distortion rationale….”

    I should have written that “Stevens absolutely succeeds….” Kennedy’s arguments to the contrary are pretty weak, though they’re not dispositive.

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