Citizens United, the loony left, and me

[drwex]

TL;DR version: Citizen's United is bad law but the Left/Progressive response is overboard, stupid, and not a good idea.

I'm not sure how much background people need - there's a lot of good stuff you can read. Citizen's United, a Supreme Court decision that should have been limited to whether or not a single film could be shown on pay-per-view TV, became a precedent-setting case that has transformed American politics, though not in the way anyone expected.

I don't think anyone expected that over 90% of funding in this election cycle would come from a small number of ultra-wealthy individuals. The entire group responsible for those millions of campaign funds would fit nicely on a chartered 767. Corporations, feared as the primary beneficiaries, have so far stayed clear of this level of buying politics, presumably for fear of public backlash. GE makes nukes and tends to donate heavily conservative/Republican, but probably 40-50% of their appliances are bought by people who vote Democrat and who would presumably be pissed off if the GE SuperPAC was out front airing attack ads for Romney. It's just not good business to get that deep into buying candidates overtly, nor is it really necessary. Search "regulatory capture" for details.

That said, Citizen's United enshrines a fundamental error in our laws. The error is equating money with speech, and thus making it almost unfettered. You can't restrict speech - it's a very bad idea to do so - and if money is speech, this follows from that. Instead, I believe we should legally treat money as property. We have fairly strong property protections in the US (modulo imbecilic decisions like Kelo) but not as strong as speech protections. You can do things with your property but there are ways to restrain what you can do, and I think that's the proper way to think about money in politics, too. I can buy land and build on it but I can't build, say, a fireworks factory on my residential property. Likewise, I should be able to buy politics (ads, time, phone banks, signs, videos, etc) but it should be reasonable to set some limits on such buying.

THAT said, the Left has gone pretty completely off the deep end in response to Citizens United. Their approach seems to (un)hinge on the fact that corporations are treated as persons and given strong personal rights protections as a consequence. In particular, the Move to Amend notion that the right response is to strip corporations of personhood - that is, to restrict the rights of personhood to so-called "natural people" is not at all well-thought-out.

I want corporations (and similar organizations) to have strong Constitutional rights protections. For example, I believe that the police should be required to get a warrant to enter and search a corporate office, just as they do a person's home. I believe that a religious corporation (say, a Catholic school) should be permitted to discriminate in who it hires for certain positions. I believe that nobody but an Orthodox Jewish congregation should be allowed to determine who is "orthodox jewish" enough to be counted as a member. I believe that unions should have rights of peaceable assembly and should be permitted to petition the government for redress of grievances. I believe that NGOs such as the ACLU should have the right to file Freedom of Information requests and that local Town Watch groups should be empowered to enforce things like "sunshine" laws that mandate government meetings be open to the public.

The examples go on and on. If you strip corporations (and by extension other non-natural person-entities) of Constitutional protections then you don't just "fix" the issue of corporations getting over-strong speech freedoms. You end up breaking fundamental principles of national social balance and vesting way too much power in the hands of government.

Which sounds like a funny thing for an old-school commie pinko leftist like me to say, but there it is.

Comments

[davidfcooper.livejournal.com]

The reason corporations incorporate is not to acquire rights but to limit the liabilities of its individual shareholders. This is not the case in all countries. If Lloyds of London has to pay an insurance claim greater than its current funds its individual shareholders are legally liable to pay the difference. Any amendment would probably preserve corporations' legal liability. The examples you cite concern not for profit corporations. Religious organizations are protected by the first amendment's establishment clause. As natural persons group members already enjoy the right of assembly. Freedom of Information requests are not filed by news organizarions but by their individual natural human reporters and likewise by individual natural human civil liberties lawyers. It's not clear to me what citizenship rights for-profit corporations require other than shielding shareholders from individual liability.

[drwex]

If an amendment is passed (again, see Move to Amend) that removes Constitutional protections from "non-natural persons" then religious institutions would potentially lose their protections.

Also, for-profit/non-profit doesn't matter. I cited mostly non-profit groupings because I think that many on the Left don't consider the effects on such non-natural persons when they make these arguments. But frankly I don't care if it's a for-profit or non-profit: the Fourth Amendment should apply, regardless.

[c1.livejournal.com]

I disagree with your opinion on religious organizations.
Corporations (in the business sense) are required to yield to anti-discrimination laws for good reason -- you know exactly which ones; I'm sure I don't have to recount them for you of all people. If a religious organization wants to enjoy the same protections afforded a business, then they need to step up to the civil rights plate. Right now, Catholic schools are discriminating -- how often do we hear of gay teachers being axed after being outed, despite the fact that they may be outstanding teachers, and their gender orientation has no material bearing on their lessons? Wanna keep going down that road?

[drwex]

The law is slightly more complicated - in this particular case I believe that the teaching organization needs to show that the teaching involved was fundamentally related to its doctrines.

That said... yes, I believe that a private organization should be able to discriminate in certain ways, even against people I like. I don't particularly like the way the Orthodox discriminate against women, either, but I get that it's part of their religious beliefs and insofar as that is confined to their internal religious affairs (such as requiring certain attire, controlling who gets to sit where in their buildings) then yes I believe they're deserving of Constitutional protection.

THAT said, I think you (like David) are fundamentally missing the point I'm trying to make, which is that a move to strip all non-natural persons (organizations) of all Constitutional rights is a disastrous over-reaction. By enumerating specific Constitutional rights that I think organizations should have I'm not trying to argue about those specific rights, but to illustrate the point that there are a large package of such rights and it's not a good idea to blow up the entire package in an effort to contain one particular excess.

[selenite.livejournal.com]

Right now a bunch of middle-class people like you and me can form a non-profit political corporation and have some leverage to get our voices heard on the national stage. If only single individuals can do that then it's just the Soros and Koch types who have enough power to be heard. I don't consider that an improvement.

A lot of the liberals wanting to restrict corporations haven't thought through that the New York Times, MSNBC, Harvard University, etc. are corporations. Silence their voice in politics--easy to do once the precedent is set--and things would be very different here.

[c1.livejournal.com]

I'm having fun watching the fallout from Citizens United; it's an object lesson in "beware of what you ask for, because you might just get it." I'm certain that most in the GOP would have choked on their drink had someone told them at last year's cocktail party that their one and only viable candidate would be a Mormon. For what I care, the ruling can stand if it wants: give it another two years, and both parties will have figured out how to game the system as well as they were before, and it'll be business as usual. The GOP already has their best and brightest working on this, because next time it'll be an unwashed minority carrying the GOP standard in the elections -- heaven forfend!

What bugs the hell out of me is that religious organizations demand tax exemptions, and then presume that the government won't have an interest in their affairs. Sorry, but if God, Inc. isn't contributing to the pot (like any good citizen does) then it'll have to suffer some unwanted oversight.

[pierceheart.livejournal.com]

The Times and MSNBC are already specifically covered in the Bill of Rights, as "the press", corporate status wouldn't impinge on that.

[drwex]

That's an interesting contention, which I suspect would have to be argued out in the courts. We've already seen split decisions on whether individuals (bloggers, most often) are entitled to journalist protections. The protections that have been given to institutions such as Times and MSNBC are given as institutions of the press. An amendment that stripped institutions of Constitutional rights might remove those protections.

[pierceheart.livejournal.com]

An amendment that stripped institutions of Constitutional rights might remove those protections.

It might, although if it were worded as are not persons/the people, then they might likely be free and clear as they are, quite obviously, the press.

Then again, we could get into some interesting discussions as to whether the rights of "the people" which are protected are individual or collective rights.

[pierceheart.livejournal.com]

Regarding money as speech: Be careful what you wish for, as you suggest the left should be.
http://www.huffingtonpost.com/geoffrey-r-stone/is-money-speech_b_1255787.html

Above and beyond what Stone says regarding the enabling impact of money on speech, "money is not speech" could be a short step away from "only speech is speech", which results in things like Bland v. Roberts, 4-11cv45 (E.D. Va.; Apr. 24, 2012, text here (http://www.scribd.com/doc/91406670/Bland-v-Roberts-4-11cv45-E-D-Va-Apr-24-2012)), wherein a judge ruled that the "Like" button on Facebook cannot be considered speech that a government body cannot regulate. It's probable that Bland will be overturned, in my non-attorney opinion.

But that strict absolutism is what has led some places to try and outlaw flag burning - it's not someone speaking.

[intuition-ist.livejournal.com]

problem is, the minute an organization decides to start being a business (that is, dealing with the public, hiring people, running a university, buying inventory, putting out adverts to job placement agencies, etc.), they stop being *just* a organization that is limited to a certain group of people.

what's to stop a group of Catholics (qualifier chosen at random, substitute as you like: Orthodox Jews, lesbian separatists, etc.) from forming an organization then restricting their hiring to only Catholics? or buying only from Catholics?

IMO, when you start dealing as a business, you become subject to the laws that businesses are subject to, previous racial/gender/religious restrictions notwithstanding.

if you don't like dealing as a business, you have the option of staying just an organization that discriminates against certain sets of people, staying out of the public sphere, and the laws involving businesses will leave you alone.

or at least, that's how i wish the world worked. then you wouldn't have Catholic-affiliated organizations businesses deciding to deny birth control coverage to their employees (for example).

[drwex]

I understand Stone's point, but I think he's misguided. To take an example, a megaphone is not speech, but it's often used in conjunction with speech. However, its use brings in questions of noise ordinances and there are legal ways to restrict the use of amplification technology that pass First Amendment muster. Thus the People's Microphone was born.

Just because something is used in speech doesn't mean it automatically has the same freedoms as speech itself. Flag-burning, to take a particular example: I may burn a flag as a symbolic speech act (*) but I may not wrap my enemy in a flag and set that alight, claiming free speech protections for my actions.

I see no problem in saying that money is not speech, particularly under conditions such as I outlined where we have a good strong regime of limitable protections, such as treating money as property.

The Bland decision is stupid law made by a judge who doesn't understand technology or the law and it'll get overturned. That said, the "Like" button is a particularly tricky example on which to build a principle because the Like button is strongly implicated in commercial transactions - many companies have a "Like us on Facebook and get $foo". Commercial exchanges are not given the strong First Amendment protection that other speech acts get. Though I think Bland is wrong, it's not as clear-cut or simple as people make it out to be.

(*) and Stone conveniently elides a century or so of precedent that establishes clear First Amendment protection for speech acts, including the act of being silent.

[selenite.livejournal.com]

1. A "press" can be a one-man operation, which would make the NYT much less effective than it is now. The 1st doesn't guarantee that other people can help you with your speaking, writing, etc.

2. Later constitutional amendments overwrite prior ones.

[selenite.livejournal.com]

I'll point out Boy Scouts routinely burn US flags. In fact a picture of one such incident was on the cover of a fundraising pamphlet in our area. Making a respectful ceremony of disposing of a flag too worn to fly is an acceptable act because of the speech that goes with it. Protestors burning flags are opposed because of their speech with the act.

Though the "inciting to riot" restrictions on speech would apply, at least where I live.