...there is no way to escape the fact that corporations are creations of the government. If the government can't limit what corporations can spend on political campaigns then it change the rules on the economics of being a corporation.The government can take away the privilege of limited liability for shareholders. In other words, if a corporation damages individuals or communities (as in tobacco or asbestos companies) then all of its shareholders are fully liable to the full extent of their individual assets until the damages are paid off. A corporate bankruptcy does not get anyone off the hook. Corporations without limited liability can get to spend however many billions they want on political campaigns.Then Congress can make a special category of limited liability corporations. These corporations will voluntarily agree to give up their political rights in exchange for the privilege of limited liability for shareholders.This perfectly complies with the Supreme Court ruling -- corporations have all political rights of individuals. They only surrender these rights if they choose to get the privilege of limited liability.
The conservative majority of the U.S. Supreme Court has given a monumental victory to special interests—i.e., the big money corporations, the folks who already dominate Washington politics—with its ruling in Citizens United v. Federal Election Commission. Chief Justice John Roberts, along with Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy (who wrote the court’s opinion), have gone out of their way to further obliterate serious efforts to reform out-of-control campaign spending—spending that conspicuously distorts democracy in favor of those who can buy political influence. This ruling is of the same judical activism ilk that produced Bush v. Gore, not to mention the ensuing eight years of a disastrous Bush/Cheney presidency from which the nation has yet to recover. Understandably, President Obama is flummoxed.
This decision is long, at 183 pages. It includes a powerful dissent by the four centrist justices (there are no liberals on this court). And the ruling is chock full of nuanced information that spells out what Congress can and cannot do to reform our dysfunctional and money-hungry election system. This is not a ruling that lends itself to instant analysis. Those who follow this subject far closer than I do will be figuring it out for days, if not months. However, I would recommend the following sites for a quick take on the ruling: Slate (good overview), SCOTUSBLOG (which has followed the case closely), and, in particular, The Brennan Center (which filed an amicus brief in the case and will be leading the way in sorting out the full meaning). To understand what the court majority did, scroll down to about Page 88 of your .pdf reader and read the dissent written by Justice John Paul Stevens, and joined by Justices Ruth Ginsburg, Steven Breyer and Sonia Sotomayor. It is an eye-opener.
Aside from the fact that the majority ruling reeks of conservative politics, what I find most striking about conservative judicial activism typified by this ruling is the fact that the justices involved are totally out of touch with reality. None of the men involved in this historic decision have been elected to anything, ever. They have no idea how difficult it is for elected officials to deal in the contemporary money-flooded milieu of Washington. The work experience of those who have further opened the floodgates for money in politics is restricted to the executive branch, high-priced law firms, or the chambers of the lower federal appellate courts. Not since the late Justice Hugo Black, a former U.S. senator who retired in 1971, has the court had a member of Congress on its bench, someone who can explain the real world to the other justices. These conservative justices live in a bubble, and they have little true understanding of what they have done, other than, of course, to know that they have taken care of conservatives, the so-called Citizens United who filed this lawsuit. (Yes, David N. Bossie, the president of Citizens United, is the same fellow who worked overtime to impeach President Bill Clinton.)
By focusing on speculative hypotheticals rather than the specifics of this case, Appellant ignores the very steps that Congress and the FEC have taken to ensure that Appellant’s Orwellian scenario of federal "superintendence of printed political speech," id. at 1, never comes to pass. In essence, Appellant’s argument is a slippery slope – it claims that it is infeasible to draw the dividing line between corporate campaign advertisements and other political speech. However, the statutory language and regulations at issue here, as well as the history of campaign finance regulation in this country, demonstrate that this slippery slope is fictitious.
We need immediate action to reverse this decision. Even with the Supreme Court's appalling re-write of the First Amendment, the Congress and the state legislatures are free to change corporate law. Every state and the Congress should immediately enact legislation to guarantee that corporate decisions to affect government are made according to democratic and republican norms. This would do it:
Any corporate decision or expenditure that might affect the American political process, or the rules governing corporate behavior, which is made in this State or would affect the political process in this State, must be approved by a majority vote of every human corporate stakeholder who is a US citizen and might be affected by the decision or expenditure, including directors, managers, employees, human investors (or the human beneficiaries of institutional investors), customers, suppliers and taxpayers who might have to pay additional taxes to replace taxes corporate taxpayers avoid or to clean up messes that such decision might allow. The human beings involved may delegate this decision to elected representatives, including the board of directors of a corporation, so long as the elections of those representatives are held on a fair basis according to democratic norms including one human one vote, limited terms of office, and enfranchisement of all adult humans who are seriously affected by the representatives' actions.
Just what we need, an increase in the ability of corporations to exert political influence [Here's more on this topic from a previous post.] If a legislator votes for health care reform, to limit greenhouse gases, to impose tough regulations on banks, etc., there is nothing to stop corporations from using their billions in profits to target that individual with a blitzkrieg of negative ads. Legislators from small districts cannot match the resources that corporations have at their disposal, and even legislators from large districts would be quite vulnerable. As Andrew Leonard notes:If the president follows through on his promises to limit the size of financial institutions and to prevent banks from using federally insured deposits to make bets on securities, the banks will fight him with everything they've got. That much we already knew. But now the Supreme Court has handed Wall Street a huge club with which to thwack Obama or any other politician who dares to try to restrain the likes of JPMorgan and Goldman-Sachs. And you can bet they won't be shy to use it.
With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.
Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.
As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.
The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)
The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.
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.
This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.
Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.
The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.
The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.
After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.
Today’s Supreme Court ruling is an Alice in Wonderland exercise. The five-justice majority reached the outcome it sought — an outcome that greatly expands the legal rights and political power of corporations — by trying to redefine basic reality.
No matter what the Court majority may prefer to argue or believe, corporations are not people and money is not speech. They simply are not.
Nor did the Founding Fathers perceive them as such. The notion that corporations — a useful legal fiction created by government — should have the same rights as natural human beings would have astounded Thomas Jefferson, James Madison and John Marshall. The theory of natural rights that animated the Declaration of Independence proclaimed that it is people and only people who are endowed with inalienable, natural rights. At the time, they did not even extend that theory to apply to those people who were held as slaves.
Corporations and unions are merely tools. And like any manmade tool, they can be remade however we wish to make them perform better in our service. They are not natural persons with rights inherent in their existence. If we choose to endow corporations with certain rights and deny them other rights so they might better serve our purposes, we ought to be perfectly free to do so. They are our creations.
Yet at its core, the Supreme Court’s majority decision in Citizens United attempts to erase that distinction and give corporations and people equal standing. The judges proclaimed point blank that it is in fact unconstitutional to treat corporations and people differently in matters of political speech.... [i]n other words, inanimate, lifeless corporations cannot be “disfavored speakers” under the Constitution. They must be given the same natural rights as human beings.
And these judges proclaim themselves originalists. Amazing.
Justice John Paul Stevens, writing for the minority, is clearly confounded by what his colleagues are attempting:
“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.”To rule that Congress cannot limit the rights of corporations that are invented by man and controlled by man — to endow those legal fictions with the same natural rights as living, human beings — is absurd. To claim the U.S. Constitution as the basis for that ruling is an outright fabrication.
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