A couple of days ago I engaged in a public debate on Facebook with an individual who I don’t really know. The subject was the Supreme Court’s January 21, 2010 decision overturning limits on corporate campaign financing. As expected, most progressives railed against the ruling. But those within the conservative spectrum — from Libertarians to Capital Fundamentalists — seemed fine with the broad “corporate personhood” endorsed in the majority opinion. You see, corporate power and influence isn’t inherently evil, as long as it’s part of a vibrant debate within an open marketplace of ideas. A marketplace ruled by a handful of corporations!
The following is based on my arguments with a Libertarian foil. (Such is my cross to bear.) Before we get started, a caveat: I am neither an attorney nor a Constitutional scholar. I do live in a town chock full of lawyers, however, and, while I’ve met some brilliant legal minds, I’ve come to realize that being barred doesn’t necessarily make you a genius. I feel conversant enough in the peculiar language of the law to offer a layman’s take on the Supreme Court decision; if there are any experts reading this who feel that my analysis is lacking, feel free to correct me in the comments.
Corporations and the Bill of Rights
Back in 1886, the U.S. Supreme Court refused to hear arguments about whether corporations could be considered “persons,” but simply stated that they should be treated that way within the framework of the Fourteenth Amendment (originally meant to ensure the due process rights of freed slaves and their descendants).
It wasn’t until the 1970s that the Supreme Court began extending First Amendment speech rights to corporations. In 1978, the Court held that corporations in Massachusetts had the right to make campaign contributions to defeat a political referendum for a progressive income tax. From there, it was a short hop to the massive corporate spending on campaigns wherever corporate power would potentially be mitigated. These “rights” have been upheld in rulings ranging from employee compensation to campaign finance to toxins in household products.
Corporate expression was subsequently extended to include “negative speech,” meaning that what corporations didn’t choose to say was also protected. Here’s an example some readers might recall: in 1996, a U.S. appellate court struck down a Vermont law requiring labels on milk containing bovine growth hormone. The appellate court ruled that this program would infringe on corporations’ negative speech rights, and held it to be unconstitutional based on a previous Supreme Court decision stating that, “for corporations as well as for individuals, the choice to speak includes within it the choice of what not to say.”
So we’ve established that there are First Amendment protections for corporations, based on precedent. So why was the Supreme Court’s ruling on campaign financing so effed up?
Overbroad and Constitutionally flawed
Constitutional scholarship (which seems to escape the penetrating intellects of Clarence Thomas and the supposed Construcitionist Antonin Scalia) suggests that this was a truly sloppy decision. And this is even before we get to the negative effects it will likely have on society.
Despite the right’s intolerance of “legislating from the bench,” this ruling was the pinnacle of judicial activism. Why? Because no lower court had even considered an argument for striking down longstanding laws limiting corporate financing. The purpose of any bench is to rule as narrowly as possible. And the case in question, Citizens United v. Federal Election Commission, did not require a broad ruling on the supposed Constitutional “rights” of corporations. Therefore, this decision can be viewed as an EPIC JUDICIAL FAIL.
The red herring of Speech
Now, let’s get back to the fallacy of the majority opinion, which would surely have Thomas Jefferson spinning in his pine box.
This ruling, despite it being argued on First Amendment grounds, has nothing to do with speech.
Under previous federal election law, corporations and labor unions had full rights to say whatever they wanted to about political candidates at any time. What they couldn’t do was apply unlimited general treasury funds in the process. Meaning, they had to use cash raised by their PACs and from employees and members. This in no way constitutes a ban on speech.
Do corporations have feelings?
The Supreme Court decision also implied that there is no constitutional distinction between a corporation and a human being. This is ludicrous. Sure, Court precedent holds that corporations are considered “persons” and are therefore entitled to Constitutional protections. Yet for the last 100 years, Congress has prevented corporations contributing directly to candidates, meaning that these “corporate citizens” are hardly the same as their flesh-and-blood counterparts.
Corporate personhood in no way sanctions equivalence. Just because corporations enjoy free speech protections does not mean they get every other protection afforded a human being. Example: Can a corporation vote? Can a corporation run for office? (I guess they can already get married, even if most gay people can’t.)
Cherrypicking precedent
This ruling even goes against the Supreme’s own prior rulings. In 1982, the court reaffirmed “the need to restrict the influence of political war chests funneled through the corporate form.” In an earlier decision — on which this most recent opinion was supposedly based — the court said “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” That hardly sounds like an endorsement for extending rights even further.
The myth of third-party benefit
My debate partner advanced the notion that the ruling will somehow benefit third parties, who will now be able to receive direct corporate funding, allowing them to more realistically compete against the majority parties. That sounds great, but it’ll never happen. Corporations like picking winners. Winners that they can influence once they assume office. If a third-party candidate, say a Libertarian, runs on a platform opposing. . . let’s just say media consolidation, because this particular freedom-loving patriot understands that a functioning democracy depends on public access to a diversity of voices. Do you think Rupert Murdoch is gonna fund that platform?
I’ve also heard it said that only mindless TV junkies are swayed by political advertisements and that American citizens are responsible for being self-informed. To that I say, what fucking country do you live in? There’s a considerable number of people in America today who believe that our President is a Kenyan-borne Muslim Maoist. Now where did they get that idea? Perhaps it was Fox News, whose parent company is now free to pour dollars directly into any campaign it wants for the purpose of politically-expedient smears.
Do you find that comforting? I certainly don’t.
Goodnight, America
It’s one thing to expand our imperial ambitions into untapped capital markets through a murderous nexus of corporate/elite fundamentalist/state power. It’s another to sell our own democracy for scraps. The Supreme Court has now guaranteed that only the most privileged groups in our society will have a voice in the political process. This is not only shameful, it hastens the end of our bold experiment in Liberty and Justice. I wonder what Lady GaGa will wear to the funeral?
Thanks! I appreciate the comment. It’s definitely a chore to debunk
this stuff without mudslinging, so I’m glad to hear someone thinks it’s worth it.
[...] a pictoral follow-up to yesterday’s analysis of the SCOTUS campaign finance [...]
Worth it? to me dude you’re a smegging HERO lol I wish I could put all the words in my head in your hands.
I hate smack talking… but it feels so good sometimes, I admire your restraint.
Judi my dear, Obama is only partly to blame, we the victims should also accept culpability. To me they rely on us being victims, they want me/us to feel powerless.
So what do we do about that?
Sorry for another post but something was bugging me!
Judi I’m sorry but sometimes I’m a little slow, I really do need to give stuff…I mean wake up before posting stuff. I’m thinking your Obama comment was sarcasm? The internet is a tough environment for me, truly awesome place but I just don’t fit in here, sorry folks. Thinking my point still remains valid though… more so to me considering the internet comment.
…anyways, t’other thing that was bugging me was… this fear of loss of power. See it everywhere on the net, heard it in the voices of the many folk I have met from your country, but this fear is self induced.
Oh boy this is a multi-layered subject that I just cannot express in written word alone, but I’ll ‘av a bloody good go 
(without going on too long I hope)
Knowing how fear works in most of it’s forms, and more importantly how some folk prey upon it… history to a large extent helps me understand most fears.
Do you know of this man http://en.wikipedia.org/wiki/Adam_Smith Now my base of poilitics is, as a creature of socialism, not entirely sure which ‘branch’? His idea’s are really quite interesting to explore. Believe it or not this Scot & his fellow thinkers were kinda responsible for you lot, and us lot for that matter.
What we see in this post is Adams smiths ‘dreams’ being realised, and abused by people with the MOST TO LOSE. I’m no fan of capitalism but he (A.Smith) really has a point, when it’s not abused, but then we have allowed it to be, haven’t we?
On a further cursory note on history & economics, China has at least on two seperate occasions in history been the ‘back bone’ of our world economy…. and as one is so proudly keen to say when ever he can, so has my part of GB Lancashire.
DEEP BREATH…..now relax… no seriously please do 
Beautiful! You’ve made the point the point without name calling or heated rhetoric. We have been sold to the highest bidder, and those FOX people don’t get it, or seem to care. Between Rupert Murdoch, and that Saudi Prince whatever-his-name-is we are at the mercy of Big Business and other countries; but it’s all Pres. Obama’s fault, of course. (Sigh)