TT's Lost in Tokyo — by TokyoTom

Further to my four preceding posts, I copy below a further comment that I left on a thread at The Volokh Conspiracy, which I think summarizes the core Constitutional issue:

TokyoTom says:

February 3, 2010, 12:32 pm

PR.Watch.org succinctly summarizes:

Now that the Supreme Court has ruled that corporations are entitled to the same free speech and political rights as American citizens, Murray Hill, Inc., a public relations and advertising firm in Maryland has announced that it intends to run for Congress in Maryland’s 8th Congressional district. In an undated press release
posted on the company’s Web site, Murray Hill says, “Until now,
corporate interests had to rely on campaign contributions and
influence-peddling to achieve their goals in Washington. But thanks to
an enlightened Supreme Court, now we can eliminate the middle-man and
run for office ourselves.” Murray Hill states that it plans on spending
“top dollar” to protect its investment in government, adding, “We
bought it, we paid for it, and we’re going to keep it.” The company
plans to run as a Republican in the primary, and announced that it will
run an aggressive, historic campaign that “puts people second” or even
third. Murray Hill will be the first corporation to test the Supreme
Court’s new ruling conferring political free speech rights on
corporations. Murray Hill has designated a human to fill out the
necessary forms to apply for its run for office, and it’s political
slogan is “Corporations are people too!” It has started a Facebook page and says it plans on using automated robo-calls, “astroturf” lobbying, and computer-generated avatars to win over voters.

More here: http://www.murrayhillweb.com/pr-012510.html

here: http://www.huffingtonpost.com/william-klein/supreme-court-ruling-spur_b_437871.html

here: http://www.huffingtonpost.com/william-klein/corporate-persons-get-sho_b_440468.html

here: http://www.murrayhillweb.com/new_day/index.html

Facebook

YouTube

Twitter (with links to various TV, radio appearances)

Further to my preceding posts on corporations and free speech, I invite others to read this semi-serious piece in Truthout that examines the implications of the United Citizens vs. FEC decision:

“Personal Corporatehood: Coping With the Reason Divided of Citizens United”

The author, Randall Amster suggests that in the wake of the latest Supreme Court case, ALL citizens ought to abandon personal responsibility and liability and incorporate themselves. Amster is a J.D., Ph.D., teaches peace studies at Prescott College, and is executive director of the Peace & Justice Studies
Association.

I quote liberally (emphasis added):

There’s great consternation brewing over the recent Supreme Court
decision that cements and extends the misbegotten logic of “corporate
personhood,” and rightly so. Surely, one of the most farcical and
tortuous doctrines ever established in our system of jurisprudence,
this conflated concept has drawn the ire of (small-d) democrats at
least as far back as Thomas Jefferson, who wrote in 1816, “I hope we
shall … crush in its birth the aristocracy of our moneyed
corporations which dare already to challenge our government in a trial
of strength, and bid defiance to the laws of our country.” …

Still, the notion of “corporate personhood” remains
something of a misnomer. In our system, as now expanded by the Supreme
Court, corporations actually enjoy more rights than individuals do in
many ways. To wit: liability shields, rights of transfer, political
access and influence, subsidies, laissez-faire regulation, freedom of
movement, self-determination, self-governance, tax breaks etc. In
particular, when it comes to political speech, corporations are now
essentially unfettered in their freedom, something that we mere mortals
have yet to fully secure. Consider the language of the court’s recent
ruling: “If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for
simply engaging in political speech.” …

President Obama called the decision “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.” What wasn’t
immediately clear is whether he intended this as a lamentation or a
mere observation of political reality. Either way, he was in essence
stating a working fact, namely that whatever shards of democracy and
the “will of the people” had existed up to now, the pretense is all but
gone and corporations will openly run the show. I suppose this has the
virtue, in any event, of being a more honest representation of how
things actually transpire. The question is where things will go now
that this critical threshold has been crossed.

Most likely, this ruling is a harbinger of further
extensions of corporate rights and powers. A broad mandate and a
willing court will impel corporations to take on even more of the
qualities ordinarily associated with individuals, as noted in the
SCOTUS blog’s analysis of the decision: “It is not too much to expect
that lawyers for corporate America may well be looking to explore the
outer possibilities of their clients’ ‘personhood’ and new-found
constitutional equality.”[link added] There previously had existed a founding
principle that “natural persons” and “artificial persons” were separate
and distinct entities under the law, with the former holding historical
priority in our constitutional framework. By now, that distinction has
been blurred to such an extent as to be effectively meaningless, as
evidenced by a 2008 Federal District Court ruling in which it was
proclaimed by the judge that “Blackwater is a person….”

If Blackwater is a person, I want out. Indeed, this
suggests a strategy that “natural persons” might take in embracing the
implications of this unrestricted corporate world. If a corporation can
become a person, then by implication a person can become a corporation.
I am thus advocating a new doctrine of “personal corporatehood,” in
which we should all avail ourselves of the enhanced rights granted to
“artificial persons” in our system. People should begin taking steps to
incorporate themselves immediately. …

Just imagine the benefits. When someone asks you for
a favor, you can off-puttingly reply, “I have to check with my board of
directors at next month’s meeting; someone will get back to you then.”
When you want to meet with your Congressperson on matters you feel
strongly about, the receptionist will announce, “Senator, a corporation
is here to see you,” which will likely get you instant access. If you
go public, you can sell shares in yourself and make a tidy sum (just be
sure to retain a controlling interest). If someone irritates you or has
something you want, you can likely get the Marines sent in to deal with
them. You can avoid having to appear personally at court hearings,
sending your hired-gun attorney instead. And you can’t be thrown in
jail, since a corporation itself cannot be imprisoned. See?

At the end of the day, we “natural persons” can try
and fight city hall on this one, or we can get in the game and embrace
the benefits of artificiality. In a world of surfaces, where
profiteering masks as politics and gerrymandering as justice, this may
well be the best of all strategies for survival.

Amster is pretty much right in his discussion of the now rather superior rights that corporations have over individuals. While we can`t really abandon our individual identities, by incorporating we can shield assets by limiting liability and maybe, even double or triple our vote, if courts follow their logic and acknowledge that voting is simply a form of speech.

Or we could find ways to step back from the Alice in Wonderland nonsense that creeping corporatism and “conservative” Supreme Court justices have led us to.

Further to my preceding post on speech and corporations, I highly recommend Lawrence Lessig`s insightful short piece, “The Principled and Pure Court? A Reply to Glenn Greenwald” (HuffPo, January 27).

For those who haven`t seen it yet, I take the liberty of quoting liberally (emphasis added):

Salon‘s Glenn Greenwald
is just about the most persistent and effective critic of money in
politics today. He is among the least starry-eyed reporters studying
Congress. But his essay defending the Court’s judgment in Citizens United would have been better had he sprinkled a bit of the skepticism he has for Congress on the words penned by the Court….

The First Amendment, Greenwald tells us, is an absolute. It applies
not to “persons”; it “simply bans Congress from making any laws
abridging freedom of speech.” This law plainly banned these entities —
whether persons or not — from a freedom of speech. Ergo, this law is,
and should have been found to be, unconstitutional.

Sounds good. Sounds principled. Sounds refreshingly different from
anything else that happens within the reach of DC (i.e., good and
principled).

But apply that same test to the following (not so hypothetical) free
speech case: A bunch of doctors practice in family planning clinics.
The government issues a rule that says certain doctors in certain
clinics are not allowed to discuss abortion as a method of family
planning. They can talk about abstinence. Or condoms. But they are not
allowed to advise their pregnant patients that they have the liberty to
abort their fetus.

Sounds like — under the First Amendment Greenwald describes — a
simple case. Whether or not doctors are persons (and at least some are
just mere mortals), they should have the freedom to speak. Advising
someone about a legal medical procedure is among the core freedoms one
would expect a Free Speech Clause to serve.

Yet in 1991, in an opinion by Chief Justice Robert’s former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan,
the Court found no First Amendment problem at all with the government’s
restriction on doctors’ speech. Indeed, it wasn’t even a difficult case
according to the Court (“no question but that the statutory prohibition
contained in § 1008 is constitutional.”)

Why? How? Well the doctors at issue worked in family planning
clinics that had received at least some of their funds from the
government. And in exchange for that benefit, the government was free
to gag the doctors however it wished. The doctors were free of course
to work in a family planning clinic not funded at all by the government
(for of course, there are plenty of those) (that’s a joke). But so long
as the doctors take this benefit from the government, they’ve got to
live by the rules of the government, at least so long as those rules
serve some legitimate state end.

So how is this case related to Citizens United? For the law wasn’t
applying exclusively to entities that had received something from the
government. It was applying to all corporations.

But of course, corporations do receive a gift from the government.
The government limits the legal liability of investors in that
corporation in exchange for their risking their capital to spur
innovation and growth. That benefit is significant. And the First
Amendment question is whether in granting that benefit, the state would
be free to limit the political advocacy that corporations engage in.

It seems astonishing to imagine the state couldn’t. State law has
historically had wide freedoms to condition the corporate form as they
wished. This fact has led some, including my colleague, Sina Kian, to
argue that Citizens United is less than people think. That the decision
notwithstanding, states could build this limit into their corporate
charters. Or that maybe even Congress could induce states to do the
same. The question then would be the reason the government had for
demanding the entity give up this liberty in exchange for the corporate
form. Traditionally, the burden of that question is the easiest for the
government to meet — is there any state interest at all? In Rust, the
interest was that that government didn’t like abortion.

But I agree with Greenwald that there is something unseemly in the
idea that the government could restrict the speech of a class because
it doesn’t like the speech of that class.

Yet this is the most confused part of the commentary (and reaction)
of most to this kind of regulation. If the government’s reason for
silencing corporations is that they don’t like what corporations would
say — if it thinks, for example, that it would be too Republican, or
too pro-business — then that’s got to be a terrible reason for the
regulation, and we all ought to support a decision that strikes a law
so inspired.

That, however, is not the only, or the best, justification behind
the regulations at issue in Citizens United. Those rules not about
suppressing a point of view. They’re about avoiding a kind of
dependency that undermines trust in our government. The concentrated,
and tacitly, coordinated efforts by large and powerful economic
entities — made large and powerful in part because of the gift of
immunity given by the state — could certainly help lead many to
believe “money is buying results” in Congress. Avoiding that belief —
just like avoiding the belief that money bought results on the Supreme
Court — has got to be an important and valid interest of the state.

If the Court really means to say that entities that fund or create
other entities can’t limit the power of those entities to speak — so
the government can’t stop doctors from talking about abortion, or the
IRS can’t stop non-profits from talking about politics — then we
really have crossed a Bladerunner line. For that conclusion really does
mean that these entities were “created with certain unalienable
rights,” even though they were created by a pretty pathetic creator —
the state.

My point is not that the state’s power to condition should be
unlimited. The point instead is that it’s not so simple, or absolute,
as Greenwald would have it. And given the true complexity of these
evolving and complicated doctrines, it is certainly fair to be critical
in the extreme of this decision by the Court, favoring speech that most
believe it naturally likes (unlike abortion-speak), in a decision that
ignores the judgment of Congress about the conditions under which the
integrity of that body, or any election, proceeds.

It seems to me that Lessig doesn`t go far enough, in questioning as I have all of the negative consequences of the state grant of limited liability to the owners of corporations. Surely any libertarian worth his salt should do so.

But Lessig has understated his own case: the government has a valid interest in seeking to prevent not only the appearance that “money is buying results”, but actual corruption and sweet deals as well. Surely the Constitution was not intended to let wealthy individuals to get a leg up on everyone else by laundering their speech through a company and on a tax-deductible basis.

Further, Lessig fails to noted that the Supreme Court could easily have avoided overturning laws and decades of precedents and public understanding – and could have provided much-needed clarity – by concluding that the statements coming from corporations are NOT entitled to protection as First Amendment “speech”, because corporations are legal entities and not themselves actual individuals capable of “speaking” for purposes of the First Amendment. Such a decision would leave all corporate spokesmen and shareholders bearing, like the rest of us do, personal liability and moral sanction for false or offensive speech (though insurance or indemnification by others might of course be be available).

But via the growth of concentrated power enabled by the state establishment of the corporate form, we appear to be rapidly becoming a nation a county “of the corporation, by the corporation and for the corporation”.

Banning corporate political speech (and campaign contributions) would dampen the rent-seeking pressures that have fuelled to the growth of the state; such steps would also invigorate public discourse – and build greater national trust – by making it clear WHO is actually doing the talking (or letting the body politic discount whenever speech is anonymous).

Further, virtually everyone has been ignoring (2) WHY it is that there is so much concern about corporations and their influence on (and vulnerability to) government: namely, states have allowed individuals (and now other corporations) to form separate, limited-liability legal entities that cut off their owners for any responsibility for the damages that such corporations may do to others.

One of the chief direct consequences of the use of the state to create corporations, as I have discussed in many posts (as the Mises` resident radical enviro), has been massive risk-shifting to the public and cycles of public pressure to use government to rein in corporations. In this, the better organized, longer-lived  and deeper pocketed corporations always having a leg up on gaming the drafting and interpretation of laws and regulations, and using government to steal further from/shift risks to the public at large and to hobble competitors. Thus the indirect consequences of the grant of a limited liability corporate personhood include not simply the financial crisis, but the growing distrust of government, corporations, politicians and voters of a different political stripe and the ramp-up in reasons to fight over the wheel.

I think that the Supreme Court decision in Citizens United v. Federal Election Commission is wrong, chiefly because the First Amendment is about HUMAN speech, while corporations – though associations of humans – have a distinct legal identity and very different characteristics.

The decision is also wrong because the Roberts court fails to acknowledge that just as the state can create corporations, so also can it condition their existence on refraining from political speech (making political contributions, etc.), or regulate their speech via excise taxes or the like (just as the federal government so conditions the grant of income tax-free status to religious groups and non-profits on express restrictions on political speech). But far better to attack the problem at the root of incorporation (or at the Constitutional level) than by a host of federal-level laws and regulations – including those remaining on churches and NPOs.

I have commented on these points in a blog thread at the libertarian/right-leaning legal blog, The Volokh Conspiracy.

TokyoTom says:

January 22, 2010, 1:12 am

TokyoTom says:

January 24, 2010, 9:53 pm

John Dewey says:

The discussions about whether corporations have the rights of people and about whether the Founding Fathers could have considered corporations — is any of this relevant?

The First Amendment protects a citizen from a powerful government which would decide what speech the citizen would be allowed to read or hear. It’s not a right granted to a speaker, but a right granted to a listener or reader. As such, it makes no difference whether the speech being protected comes from a single person, a non-profit organization, a union. a church, or a corporation. It is not the speaker but rather the speech — and the right of the citizen to hear it — which is being protected.

January 26, 2010, 5:33 pm

TokyoTom says:

John, I disagree. The First Amendment is about the peoples‘ rights to gather and to speak privately and publicly, including reporting on government.

Corporations are not people — but legal fictions that are creatures of their owners and the State, which protects their owners by giving them a special grant of limited liability. Corporations may parrot the words of particular people with in the firm, but they [corporations], like parrots, are not people and do not “speak” themselves. (Actually, this is unfair to parrots and other animals, which deliberately attempt to convey meaning to others, and not as a sock puppet for another person/animal/entity.)

While I‘m no fan of corporate income taxes, just as the federal government can condition “non-profit” status on a waiver of political speech rights by churches and other forms of legal entities, so states condition the grant of corporate status on the owners‘ acceptance that they cannot use the corporation as a political mouthpiece (such a use could be made expressly ultra vires), and so should states and the federal government be able to limit or tax political speech by corporations.

Not only would this be good law, but in my view entirely good policy by doing much to slow rent-seeking via large corporations, by removing incentives for wealthy investors to influence public officials and public debate. Let the rich (and others) speak for themselves – anonymously if they choose – but we can and should stop the money-laundering of speech through corporations.

The Roberts court showed it didn‘t have the strength of its convictions by upholding the part of McCain-Feingold that mandates disclosure of who is funding speech — in my view, this is incorrect. Anonymous speech very much SHOULD be allowed – but only for individuals and organizations that have not been granted limited liability by the state.

The chief sticky side issue here is the political gagging of churches and NGOs arising from the desire for favorable tax treatment [on this, the solution lies both in ending limited liability and in ending corporate income taxes].

February 2, 2010, 9:48 pm

[This is a re-post, as the first was difficult to read due to formatting problems.] 

American Freedom Agenda Act of 2007 (Introduced in House),

http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3835:

110th CONGRESS, 1st Session

H. R. 3835
To restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.

IN THE HOUSE OF REPRESENTATIVES

October 15, 2007
Mr. PAUL introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Armed Services, Foreign Affairs, and Select Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

——————————————————————————–

A BILL
To restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `American Freedom Agenda Act of 2007′.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings- Congress makes the following findings:

(1) Unchecked power by any branch leads to oppressive transgressions on individual freedoms and ill-considered government policies.

(2) The Founding Fathers enshrined checks and balances in the Constitution to protect against government abuses to derail ill-conceived domestic or foreign endeavors.

(3) Checks and balances make the Nation safer by preventing abuses that would be exploited by Al Qaeda to boost terrorist recruitment, would deter foreign governments from cooperating in defeating international terrorism, and would make the American people reluctant to support aggressive counter-terrorism measures.

(4) Checks and balances have withered since 9/11 and an alarming concentration of power has been accumulated in the presidency based on hyper-inflated fears of international terrorism and a desire permanently to alter the equilibrium of power between the three branches of government.

(5) The unprecedented constitutional powers claimed by the President since 9/11 subtracted national security and have been asserted for non-national security purposes.

(6) Experience demonstrates that global terrorism can be thwarted, deterred, and punished through muscular application of law enforcement measures and prosecutions in Federal civilian courts in lieu of military commissions or military law.

(7) Congressional oversight of the executive branch is necessary to prevent secret government, which undermines self-government and invites lawlessness and maladministration.

(8) The post-9/11 challenges to checks and balances are unique in the Nation’s history because the war on global terrorism has no discernable end.

(b) Purpose- The American Freedom Agenda Act of 2007 is intended to restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.

SEC. 3. MILITARY COMMISSIONS; ENEMY COMBATANTS; HABEAS CORPUS.

(a) The Military Commissions Act of 2006 is hereby repealed.

(b) The President is authorized to establish military commissions for the trial of war crimes only in places of active hostilities against the United States where an immediate trial is necessary to preserve fresh evidence or to prevent local anarchy.

(c) The President is prohibited from detaining any individual indefinitely as an unlawful enemy combatant absent proof by substantial evidence that the individual has directly engaged in active hostilities against the United States, provided that no United States citizen shall be detained as an unlawful enemy combatant.

(d) Any individual detained as an enemy combatant by the United States shall be entitled to petition for a writ of habeas corpus under section 2241 of title 28, United States Code.

SEC. 4. TORTURE OR COERCED CONFESSIONS.

No civilian or military tribunal of the United States shall admit as evidence statements extracted from the defendant by torture or coercion.

SEC. 5. INTELLIGENCE GATHERING.

No Federal agency shall gather foreign intelligence in contravention of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.). The President’s constitutional power to gather foreign intelligence is subordinated to this provision.

SEC. 6. PRESIDENTIAL SIGNING STATEMENTS.

The House of Representatives and Senate collectively shall enjoy standing to file a declaratory judgment action in an appropriate Federal district court to challenge the constitutionality of a presidential signing statement that declares the President’s intent to disregard provisions of a bill he has signed into law because he believes they are unconstitutional.

SEC. 7. KIDNAPPING, DETENTIONS, AND TORTURE ABROAD.

No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process. A knowing violation of this section shall be punished as a felony punishable by a fine or imprisonment of up to 2 years.

SEC. 8. JOURNALIST EXCEPTION TO ESPIONAGE ACT.

Nothing in the Espionage Act of 1917 shall prohibit a journalist from publishing information received from the executive branch or Congress unless the publication would cause direct, immediate, and irreparable harm to the national security of the United States.

SEC. 9. USE OF SECRET EVIDENCE TO MAKE FOREIGN TERRORIST DESIGNATIONS.

Notwithstanding any other law, secret evidence shall not be used by the President or any other member of the executive branch to designate an individual or organization with a United States presence as a foreign terrorist or foreign terrorist organization for purposes of the criminal law or otherwise imposing criminal or civil sanctions.

This closely matches the legislative package suggested by conservatives Bruce Fein, David Keene, Richard Viguerie, and Bob Barr, who on March 20, 2007 announced the formation of the American Freedom Agenda (AFA), a campaign to “restore governmental checks and balances and civil liberties protections under assault by the Bush administration”.  According to the AFA:

<i>”Especially since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence.

“The 10-point American Freedom Agenda would work to restore the roles of Congress and the federal judiciary to prevent such abuses of power and protect against injustices that are the signature of civilized nations.  In particular, the American Freedom Agenda would:

• Prohibit military commissions whose verdicts are suspect except in places of active hostilities where a battlefield tribunal is necessary to obtain fresh testimony or to prevent anarchy;
  
• Prohibit the use of secret evidence or evidence obtained by torture or coercion in military or civilian tribunals;
  
• Prohibit the detention of American citizens as unlawful enemy combatants without proof of criminal activity on the President’s say-so;
  
• Restore habeas corpus for alleged alien enemy combatants, i.e., non-citizens who have allegedly participated in active hostilities against the United States, to protect the innocent;
  
• Prohibit the National Security Agency from intercepting phone conversations or emails or breaking and entering homes on the President’s say-so in violation of federal law;
  
• Empower the House of Representatives and the Senate collectively to challenge in the Supreme Court the constitutionality of signing statements that declare the intent of the President to disregard duly enacted provisions of bills he has signed into law because he maintains they are unconstitutional;
  
• Prohibit the executive from invoking the state secrets privilege to deny justice to victims of constitutional violations perpetrated by government officers or agents; and, establish legislative-executive committees in the House and Senate to adjudicate the withholding of information from Congress based on executive privilege that obstructs oversight and government in the sunshine;
  
• Prohibit the President from kidnapping, detaining, and torturing persons abroad in collaboration with foreign governments;
  
• Amend the Espionage Act to permit journalists to report on classified national security matters without fear of prosecution; and;
  
• Prohibit the listing of individuals or organizations with a presence in the United States as global terrorists or global terrorist organizations based on secret evidence.”

http://www.americanfreedomagenda.org/

Liberals are also starting to support this agenda.  In July a group of well-known liberals launched the American Freedom Campaign, with purposes very similar to those of the American Freedom Agenda. http://www.americanfreedomcampaign.org/

More here: http://www.huffingtonpost.com/naomi-wolf/finally-action-ron-pau_b_69042.html