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Fun with Kevin Gutzman, or, Does Citizens United apply to state limitations on what “speech” their corporations can engage in?

November 6th, 2014 No comments

Historian and Constitutional scholar Kevin Guzman posted a comment on his Facebook wall on the Citizens United decision that I took a disliking to.

Here is his September 6, 2014 post and my responses (to him and his other commenters):

There’s a popular meme that “Corporations aren’t people.” The aim is to repeal the Supreme Court’s decision in Citizens United that Congress cannot under the Speech and Press Clauses of the First Amendment limit political advertising so stringently as it had been under the McCain-Feingold Act. The point of the meme is that only people are entitled to constitutional protections, and so Congress can do whatever it wants to corporations. Let’s follow the implications of the claim that “Corporations aren’t people.”

So you’re going to deny corporations constitutional rights. Does that mean the government will be able to search corporations’ property without warrants? Take their property without trial? Try them without counsel? Censor their publications? Punish them under ex post facto laws? House soldiers in their property during peacetime? Force them to pay to support churches?

At least as early as Dartmouth College v. Woodward (1819), the Supreme Court recognized that corporations do indeed have rights of individuals. To say that they didn’t would mean empowering government in new and dangerous ways. Besides, we all know that shareholders–corporations–are people. They’re not hamsters. They’re not sandwiches. They’re not automobiles. They’re people.


September 7 at 1:24am

Tokyo Tom Kevin, this is an interesting an important topic, which hasn’t been set up very well. 

First, I think you missed the gist of the Dartmouth case, which essentially said that NH couldn’t alter Dartmouth’s charter (which had been granted by the English Crown), because the corporate charter was a form of private contract that was protected from “impairment” by states under the Constitution. The case was brought by the Trustees of Dartmouth, and didn’t particularly “recognize that corporations do indeed have rights of individuals.” States responded by reserving greater powers when they create corporations.…/students_in…/dartmouth.html


September 7 at 1:32am

Tokyo Tom Hopefully, we’re all clear on the fact that corporations are created by governments, were traditionally considered as forms of contracts and property rights, and have special powers, rights and characteristics provided by state legislatures that render them quite different from real, live human beings?

Unfortunately, many on the Left and Right are confused about the origin, history and nature of corporations. As I said to some progressives:

“Sadly, it seems that most if not all of the progressives here want to deny what cannot be denied: that corporations exist only because they are made by acts of legislative power of Governments. They also want to deny that the special characteristics that Govt give to “corporations” are the very attributes that lead to harms to others/social ills that continually fuel more regulation of corporations by governments.

“It’s hard to discern why they have these views–perhaps, because they are so ingrained in seeing Govt as their sole savior in fighting against corporate Frankensteins–but they are clearly incorrect, as a legal and historical matter.
Be that as it may, as a matter of understanding and attacking the roots of our problems, it behooves progressives to investigate and understand how government and corporations shape the incentives and influence the behavior of the people who find themselves within them.

“Not only do corporations exist only because of Govt, but it is clear that the reasons why corporations play such negative roles in society and have corrupted Govt are their state-granted characteristics that would NOT exist in a “free market”. Sole proprietorships, partnerships, associations and co-operatives do NOT have#LimitedLiability, unlimited lives, unlimited purposes, and the businesses do not have legal entity status different from the owners.…/corporations…


September 7 at 1:47am

Tokyo Tom Corporations have continued to find the Federal government and Supreme Court their friend in escaping control by the states that created them; see this pre-Citizens United post about the perversion of the anti-discrimination (due process/equal protection) provisions of the 14th Amendment (that used “persons” to protect freed slaves and unnaturalized Chinese) to require various states to treat corporations made in other states the same as their own corporations:…/corpspeak…/


September 7 at 1:51am

Tokyo Tom Karl Pope’s thoughts after Citizens United are largely spot on, and explain the drive that Sen. Colburn is now sponsoring to convene a Constitutional Convention to consider amendments:…/carl-pope-sierra…/


  • Kevin Gutzman It’s impossible to remove money from politics. If you deny individuals the right to buy political ads, you’ve effectively elevated owners of media corporations to the status of Elite Class, as only they will be able to say what they want. On the other hand, the Tenth Amendment reserves power to regulate elections to the states; if they want to ban donations from out-of-state interests or individuals, they should be allowed to do so. Score another negative result for the Incorporation Doctrine.
  • Kevin Gutzman I think that all federal campaign regulation is unconstitutional, as nothing in the Constitution empowers Congress to regulate anything other than the “time, place, and manner” of elections. At the federal level, there’s no reason not to have a sunshine law requiring disclosure of all donations.
  • Tokyo Tom Good point, Savana — states can and should be able to condition any corporate license on things that the corporation cannot do in its own name, such as lobbying. 
    Such a conditioning of the grant of corporate charter would be Consitutional, and would NOT deprive any individual of his own rights to lobby (or to combine with other employees to do so).If we want to get crony capitalism and the runaway regulatory state under control, we should simply stop granting #LtdLiability to corporate shareholders, and restore shareholder responsibility to monitor risk management by executives and managers.…/immodest…/

    Tokyo Tom Kevin, I didn’t realize that “deny[ing] individuals the right to buy political ads” was the premise here, but denying the “right” of state-made entities to buy political ads, make contributions etc.
    • Tokyo Tom From my own Constitutional analysis, corporations, as artificial things, don’t “speak” at all (just as a printing press doesn’t speak either); people speak. Unfortunately, corporations (including media corporations) HAVE become ways for people to mask WHO is speaking. I think it perfectly acceptable under state corporation law and under the 1st Ad to constrain certain types of corporate “speech”.

    • Kevin Gutzman Big money wins? Big money often loses. Google “Michael Huffington” or “Clayton Williams” and see what you find. Let people know who is doing the contributing.
      Note: I agree with Savana that foreign contributions should be illegal. In theory, they already are, although Bill Clinton took advantage of them, (in)famously.
    • Kevin Gutzman The idea that I should be forced to contribute to Hillary2016! thrills me about as much as being forced to help fund the Westboro Baptist Church.
      Tokyo Tom SCOTUS has the First Amendment wrong -this was intended to bind tie Feds, at a time when corporations were profoundly despised and considered property of their shareholders, with rights only grudgingly granted by states.
      Property doesn’t “speak,” even as every single shareholder and employee retains full personal speech rights.
      Kevin Gutzman “Groups of people are not people.” — ISIS
      Tokyo Tom Mark, without corporations, are people UNABLE to associate to conduct business together?
      Corporations are creations of governments. People are not. Nor are voluntary associations of people, as businesses/partnerships, co-ops, unions or churches.
      Tokyo Tom ISIS? “of course a few less than enlightened people are not seeing the distinction between an inactive band of musicians and a band of terrorists involved in current world affairs.”
    Kevin Gutzman Right, they’re sheep.
    Special sheep with all the constitutional rights of individuals that they are capable of exercising–as I enumerated in my original post. The only one they don’t have is, “coincidentally,” the one the Democratic Party doesn’t want them to have.
    From Dred Scott to present, that’s the way Democratic Party “constitutionalism” works.
    Tokyo Tom “Of course corporations have the same rights as people. A corporation is not a tangible thing. It is an abstract term describing a group of organized individuals/people.”Balderdash on a stick, that we are reminded of in the cases of BP and Fukushima. Show me any individuals without a government-made liability shield who could do the damage that corporations (and governments do). Where are the mass torts? The Superfund sites?

    Individuals, business partnerships and coops can all be kept in check (to a significantly greater degree) by others in the communities in which they live.…/quot-biggest…/

    Kevin Gutzman Tokyo Tom, I got off at “Senator Joe Barton.”
    Tokyo Tom State-made corporations are the health of the massive regulatory state, which is likewise the health of the crony corporations. It’s a rachet, and racket.
    Are you a Bootlegger, or a Baptist?
    Tokyo Tom Let’s look more at BP as a “person”:|

    • Jim Hightower:
      “And now, its rap sheet grows almost daily. In fact, the Center for Public Integrity has revealed that the oil giant’s current catastrophic mess should come as no surprise, for it has a long and sorry record of causing calamities. In the last three years, the center says, an astonishing “97 percent of all flagrant violations found in the refining industry by government safety inspectors” came at BP facilities. These included 760 violations rated as “egregious” and “willful.” In contrast, the oil company with the second-worst record had only eight such citations.
      While its CEO, Tony Hayward, claims that its gulf blowout was simply a tragic accident that no one could’ve foreseen, internal corporate documents reveal that BP itself had been struggling for nearly a year with its inability to get this well under control. Also, it had been willfully violating its own safety policies and had flat out lied to regulators about its ability to cope with what’s delicately called a major “petroleum release” in the Gulf of Mexico.

      “What the hell did we do to deserve this?” Hayward asked shortly after his faulty well exploded. Excuse us, Tony, but you’re not the victim here — and this disaster is not the work of fate. Rather, the deadly gusher in the gulf is a direct product of BP’s reckless pursuit of profits. You waltzed around environmental protections, deliberately avoided installing relatively cheap safety equipment, and cavalierly lied about the likelihood of disaster and your ability to cope with it.

      “It wasn’t our accident,” the CEO later declared, as oil was spreading. Wow, Tony, in one four-word sentence, you told two lies. First, BP owns the well, and it is your mess. Second, the mess was not an “accident,” but the inevitable result of hubris and greed flowing straight from BP’s executive suite.
      “The Gulf of Mexico is a very big ocean,” Hayward told the media, trying to sidestep the fact that BP’s mess was fast becoming America’s worst oil calamity. Indeed, Tony coolly explained that the amount of oil spewing from the well “is tiny in relation to the total water volume.” This flabbergasting comment came only two weeks before it was revealed that the amount of gushing oil was 19 times more than BP had been claiming.
      Eleven oil workers are dead, thousands of Gulf Coast people have had their livelihoods devastated and unfathomable damage is being done to the gulf ecology. Imagine how the authorities would be treating the offender if BP were a person. It would’ve been put behind bars long ago — if not on death row.
      [link above, past the Joe Barton part]

      And here’s a couple of fun video clips riffing on the nature of the unaccountability of corporate/BP execs (not to mention the absentee shareholders, “protected by limited liability” who are themselves “victims”):…/satire-oil-spill…/…/time-light-humor…/

      Tokyo Tom Corporations are “Special sheep with all the constitutional rights of individuals that they are capable of exercising,” Kevin?
      Hah. Try limited liability for one.…/speech-and…

      Tokyo Tom Corporations are the Health of the State. Is this why you and other good “conservatives” cheer them on, Kevin?
      Tokyo Tom Timothy, can I recommend you look at well-known Republican shareholder activist Robert Monks, and “drone corporations”?
      The most abusive crony corporations tend to be a low-performing bunch of listed firms, with no significant shareholder blocs:

      Tokyo Tom Stacey, yes, my problem is with “corporatism” and how government-made corporations are the hand-maiden of both the snowballing state, crony capitalism, and confused people across the spectrum bewailing or defending “capitalism!” and “free markets”. is the natural result of governments creating Btw,
      1. BP is half Amoco, and ofc operates in the US through subsidiaries. Did you miss this in my quote? In the period just before 2010, “an astonishing “97 percent of all flagrant violations found in the refining industry by government safety inspectors” came at BP facilities. These included 760 violations rated as “egregious” and “willful.” In contrast, the oil company with the second-worst record had only eight such citations.”

      2. They “are sorry individuals, should they not have rights?”

      Which “they” are you talking about, and for what purposes? If you are talking about “speech”,” then in the case of BP, who is it who is speaking, and for whom? Who speaks for workers killed? Shareholders? Management? Who are the principals, and who are the agents?

      Every individual in BP/connected to BP retains personal rights to speak, and can form voluntary groups to do so if they wish–the doctrine Kevin is pushing is a socialist/collectivist one that DENIES individual accountability and and MASKS self-interest, thus forcing those who interact with or are affected by BP into a position where, since individual accountability is near-impossible, to seek government assistance in getting at least some collective responsibility, but little private redress — very little of whatever the government ends up collecting from BP will actually trickle down, and individuals will remain beholden to the government and to BP for risk management going forward, rather than having direct rights.

      See my above clips on BP cats and the Clarke and Dawe spoof for light takes on unaccountability and who speaks for whom.

      Kevin Gutzman Tom, you have got to be kidding. The reason Obama wants to muzzle corporations is so that he can take more of our money and give it to his constituents, invite more Guatemalans to come here and become his constituents, etc. He sees them as an obstacle, and so he wants to undo American legal precedent dating all the way back to the days when a ratifier of the Constitution was chief justice of the Supreme Court. And you say that I am the one who is pushing statism. Since the Revolution of 1937, there has never been a time when the Democratic Party stood for originalism in constitutional interpretation; they always argue for new, unknown doctrines that advance redistribution, secularization, etc. This new idea that corporations don’t have the rights of individuals is more of the same.
      Tokyo Tom The purpose of the First Amendment was to protect we the people from acts of the Federal government, NOT to protect state-created corporations from the governments and people who make them.The Federal government, this time through the Supreme Court, continues to play the role of helping elites, through state-created corporations, to destroy free markets and local representative government.

      I’m sorry to see so many deluded “conservative” cheerleaders for this.

      Tokyo Tom The answer to the following question is “NO”: [Does it make any sense to treat corporations as “persons”, given the differences in incentive structures?]…/sense-treat…/
      • Kevin Gutzman Give me a break. The new argument that government can regulate corporate purchases of political advertizing is entirely about protecting incumbents from criticism. McCain said so, explicitly.
        Kevin Gutzman If you think advertizing against Obama is “destroying free markets,” we speak different languages.
      • Tokyo Tom Whip conflation now, Kevin. Try addressing my actual arguments.
      • Kevin Gutzman Show me where the Constitution gives Congress power to regulate purchases of political ads by corporations. You can’t, because it doesn’t. The argument that it does is based on the “reading” of the Commerce Clause invented by Klansman Black and his fellow FDR political hacks in the 1930s. It’s completely contrary to the 10th Amendment.
      • Tokyo Tom I’m not a fan of the Feds regulating anything, Kevin. But the states that make corporations sure as hell have a right to limit what they can do in exchange for very special privileges granted.
      • Tokyo Tom But I already addressed the First Ad several times upthread. Corporations are THINGS, not people. Things don’t “speak”, at least for Constitutional purposes.
      • Tokyo Tom My argument doesn’t refer to the absurd Commerce clause jurisprudence at all.
      • Tokyo Tom “The new argument that government can regulate corporate purchases of political advertizing is entirely about protecting incumbents from criticism.”
        I am sure that this IS the case now, but the argument against allowing corporations to speak (why does NYT get special treatment?) is 100+ years old — pretty sure I copied in a Teddy Roosevelt quote upthread.But you’re a HISTORIAN; you know this already.

        • Stacey York Morris States that “make” corporations? Huh?
        • Tokyo Tom Stacey, yes. Surely you’re aware of “corporation laws”, and checked out the Dartmouth case (rare exception of a one-off corporation made by King George). Corporations are creatures of governments — there are NO “free market” corporations.
        • Tokyo Tom The American Taliban is alive and well in “conservatives” who reflexively defend as “free markets” the corporatism that has always fuelled the “Progressive” movement.
          We have our own Sunni and Shia, battling over who gets to control the State:…/state…/

          Stacey York Morris States don’t create corporations. They tax them but thats not creation. I’m a teeny corporation and trust me, the state did nothing. States don’t have the right to silence them one bit. They do court them but that’s because they bring jobs for their state and lots of tax money. States like Maryland and California blackmail and harass them to death. Charge them for infrastructure and tax them at the federal rate which is highest in world, so they may find a state that is more friendly, but that’s not “creating” them. King George wasn’t a capitalist.
          Tokyo Tom Stacey, unfortunately you’re sounding more like a liberal all the time, with the wrinkle that they deny that governments make corporations because it’s their view that the evil aspects of corporations are due to “capitalism” and “greed”, while with you it’s a desire to defend “free markets” from “greedy” and “grasping” GOVERNMENTS (did you NOT read the Sheldon Richman piece that you posted above)?Undeniably, corporations are made by governments; the fact that governments have, via a race to the bottom have “democratized” the process doesn’t change its nature. Rather, it simply masks the deep roots of corporatism and the reasons for the regulatory state.

          I explained this upthread already, with excerpts from this blog post:


          • Brett Sylvester ^ Funny how advocates of free markets can perfectly predict the property norms that would arise in the absence of a sate…
          • Tokyo Tom Brett, if you’re talking to me, I fail to see how you’re addressing anything I’ve said.
            Propertyrights continuously evolve in all societies, as technology, demand, mores and institutions change.So?

          • Tokyo Tom Jeff, focus. We’re only talking about the corporate form – which is undeniably a creature of governments and not free markets. Our Founding Fathers all knew this, and detested the Crown’s corporations/monopolies - does the original Tea Party not ring a bell?
            But you raise an important issue - the deep entanglement of government with business that flows from government creation of corporate forms is what underlies people bashing “business” and “capitalism” when they mean corporatism, as well as why they think governments have rights to micromanage business.
            • Kevin Gutzman I reference specific provisions of the Constitution, and Tom invokes proto-fascist Theodore Roosevelt. Non sequitur.
            • Kevin Gutzman I agree that states have a right to regulate corporate behavior. I oppose the Incorporation Doctrine.
              Kevin Gutzman Since a corporation’s holdings are the pooled property of its shareholders, yes, it has fiduciary responsibility for the property to which they have a natural right. That’s why in Dartmouth College v. Woodward (1819), Chief Justice Marshall spoke of the shareholders’ rights in considering the College’s claims.
              • Kevin Gutzman Some corporate crimes lead to incarceration of officers, some don’t.
                The reasons there’s a move to deny that corporations have rights are two: 1) that some politicians don’t like being criticized, and so want to ban corporations from contributing to campaigns against them (as McCain said in explaining the McCain-Feingold Law); and 2) that there’s a general tendency for the Federal Government to deny all rights as they come to mind, and Citizens United brought this particular set to mind.
              • Tokyo Tom “I reference specific provisions of the Constitution, and Tom invokes proto-fascist Theodore Roosevelt. Non sequitur.”Hah. The historian can’t recall or research the history of his own thread.

                Kevin, you said “The new argument that government can regulate corporate purchases of political advertizing [sic] is entirely about protecting incumbents from criticism”; I didn’t disagree as to Dem motives now, but simply said “the argument against allowing corporations to speak (why does NYT get special treatment?) is 100+ years old” and referred to your proto-fascist Teddy Roosevelt.

              • Tokyo Tom “I agree that states have a right to regulate corporate behavior. I oppose the Incorporation Doctrine.”Glad we agree on the first point; on the second, with the exception of Citizens United (on the First Amendment), much of the history of extending Constitutional rights to corporate “persons” has been of “Incorporation” — viz., making the Bill of Rights applicable to state and local governments through the due process clause of the Fourteenth Amendment. Corporations now have fourth amendment safeguards against unreasonable regulatory searches; fifth amendment double jeopardy and liberty rights; and sixth and seventh amendment entitlements to trial by jury.

                You oppose these extensions to state-made corporations, presumably, Kevin?

                Then you also OPPOSE the Supreme Court’s SUMMARY extension of its new First Amendment doctrine to the STATES via the 14th Ad “Incorporation” doctrine, in the 2012 Montana case, American Tradition Partnership v. Bullock?

                If you are, then I commend you — other than your failure to point it out to people on this thread.


              • Tokyo Tom Brett: “You’re claiming that society would necessarily not be ordered in a certain wayin the absence of a state, when there’s no reason that it couldn’t be.”No, I’m not; I’m just saying that corporations are made by governments and have rights granted by governments, and observing that these are rights that you and I don’t have — owners of unincorporated businesses don’t have limited liability to persons who they may injure, we die, etc.

                As Marshall said in Dartmouth: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.”

              • Tokyo Tom “in Dartmouth College v. Woodward (1819), Chief Justice Marshall spoke of the shareholders’ rights in considering the College’s claims.”

                You speak with great authority of matters that Marshall doesn’t address in his opinion. His chief point is to determine that the grant of Dartmouth’s charter was a CONTRACT among the Crown, the founders (donors) and Trustees — not a trust with fiduciary obligations:
                “This is plainly a contract to which the donors, the Trustees, and the Crown (to whose rights and obligations New Hampshire succeeds) were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is, then, a contract within the letter of the Constitution, and within its spirit also ….”

              • Tokyo Tom “The 14th Amendment applies to Americans.”
                Due Process and Equal Protection apply to “persons” (there were plenty of non-naturalized Chinese, and the Amendment also had to clarify state and federal citizenship), which is how railroad and other corporations have been able to escape the states and capture the feds.
              • Tokyo Tom “The reasons there’s a move to deny that corporations have rights are two:”And then there are those who want to breathe real meaning back into “federalism” and states rights, and to end the conflation of corporation=business and crony capitalism=capitalism. 

                The key to regaining control over our lives from Big Brother and Big Corporations isn’t the Federal government, but by reining in corporations/revising corporation laws state-by-state.

              • Tokyo Tom HEY THREAD FOLLOWERS —

                Kevin indicated above that, because he opposes the 14th Amendment “Incorporation Doctrine,” he “agree[s] that states have a right to regulate corporate behavior.”
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Producers of "Story of Stuff" bring us 'Citizens United' For Corporations Are People Too;how long before thinking libertarians rush out to bash Lefties and defend corporations?

March 4th, 2011 No comments

On March 1, former Greenpeacer Annie Leornard and the makers of “The Story of Stuff” rolled out a new video: “The Story of Citizens United v. FEC”

The new video addresses last year’s Citizens United v. FEC ruling by an activist ‘conservative’ Supreme Court that overthrew more than a half-century of federal election laws and held in effect that the Founding Fathers must have meant that the corporations they so despised (the property of shareholders and both creatures of government and beneficiaries of grants of limited shareholder liability and other government largess, e.g., the East India Tea Company) are “persons” for the purpose of “free speech” under the Fourth Amendment.

Yes, the new video is flawed too, but it still seems like an honest – though skewed – effort to make sense of corporations and their proper role in government.

Let me ask anyone who looks at the video to ask themselves: would there be a Left wing, pro-government agenda on the five topics the video lists – Good Jobs, Healthcare, Safe Products, Clean Air & Water, and Responsible Government – if government had not first started favoring elites by creating “legal entity” corporations whose purposed owners, the shareholders, were absolved by government for any liability whatsoever for damages caused by “corporate” acts? It seems to me that if we want the Left to back away from the fight with corporations over the wheel of government, we have to strike at the real root – the government enabled aspects of corporations that set them up as moral-hazard embodied zombies detached from personal responsibility and communities.

Can I look forward to an ‘insightful’ post by a deep Austrian thinker on this latest video to show up soon on the pages of LvMI? Expectation of disappointment Hope springs eternal!

More about The Story of Stuff Project and film funders here and here; their website indicates that they have a group on the WiserEarth global collaboration platform which I am learning of for the first time. LvMI supporters, participants and fans looking to expand the Austrian message might check out this facility to see if it has any good ideas on functionality (we, too, all want to “Discover, Connect, Share and Collaborate”, right?)

Here’s the  video:


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Sunlight Foundation: Citizens United ruling allowed election to be "costliest and least transparent midterm"

November 12th, 2010 No comments

I’ve commented extensively on the recent Supreme Court decision that in effect held that our corporation-hating Founding Fathers intended to protect “speech” by corporations under the Fourth Amendment.

The effects of that decision are starting to materialize … and it seems that GOP and “Tea Party”-backed candidates have been the primary beneficiaries of a large tide of new money from undisclosed donors.

As the Desmogblog notes:

The success of GOP and Tea Party-backed candidates in the 2010 U.S. midterm elections was enabled by a massive influx of secretive spending thanks to the Supreme Court’s ruling in Citizens United v. FEC.

A new analysis by the Sunlight Foundation identified $126 million in unrestricted funds spent during this midterm without any disclosure of whose money it was. That figure represents more than a quarter of the total $450 million spent by outside groups on the midterms. …

The two leading GOP shadow groups, American Crossroads and Crossroads GPS – both founded and guided by GOP veterans Karl Rove and Ed Gillespie – are reportedly “gloating” over their influence on the elections. The two groups spent more than $38 million on attack ads and misinformation campaigns to defeat Democratic candidates.

NBC News reports that “a substantial portion of Crossroads GPS’ money came from a small circle of extremely wealthy Wall Street hedge fund and private equity moguls.”

According to an analysis by the Sunlight Foundation (a clean-government group established in 2006 by left-leaning securities lawyer Michael R. Klein that publishes its donor lists here):

The 2010 midterm election is filled with both “known unknowns,” outside groups raised and spent $126 million on elections without disclosing the source, and “unknown unknowns,” we don’t know what those undisclosed donors want. We do know one thing: the Supreme Court’s Citizens United ruling allowed this election to be the costliest and least transparent midterm in recent history.

The impact of Citizens United can be judged by simply following the money. The $126 million in undisclosed money represents more than a quarter of the total $450 million spent by outside groups. Add the $60 million spent by groups that were allowed to raise unlimited money, but still had to disclose, to the undisclosed money and the total amount of outside money made possible by the Citizens United ruling reaches $186 million or 40 percent of the total spent by outside groups.

The outside groups taking advantage of the Citizens United ruling are largely tilted towards the Republicans. Republican groups raising unlimited money and disclosing their donors spent $35.7 million, $11 million more than their Democratic counterparts. By a nearly six to one margin Republicans outspent the Democrats among groups that failed to disclose the source of their money ($59 million to $10 million).

Click to see the top 20 outside groups and how they fared in the 2010 elections

This heavy partisan tilt in outside spending aided the Republicans in expanding the playing field and likely helped them exceed predictions for House seat pickups.

According to a report by Politico’s Jeanne Cummings, the Republican outside groups coordinated their spending, maximizing their ability to influence the elections with a massive wave of spending.

I’m not in favor of ANY corporate spending on campaign contributions or political speech. It seems to me that several avenues remain after Citizens United – in addition to efforts to get Congress to require further disclosure:

– states, which create corporations in the first place (most founders accept grants of limited-liability shareholder status), can change laws (1) to prohibit such activities by corporations (in which case shareholders, executives and employees retain their Constitutional rights to speak individually or as a group) and/or (2) provide regulatory incentives that favor companies that foreswear political activities;

– concerned citizens of all stripes can form groups that monitor and publicize political activities by companies, and that provide favorable publicity of corporations that foreswear political activities.

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Carl Pope/Sierra Club: The End of the Corporate Zombie? Will Americans finally fight the corporate takeover of government? (post Citizens United decision)

July 7th, 2010 No comments

I’ve just run across two pieces of commentary on the Supreme Court’s recent Citizens United decisions by Carl Pope, chairman of the Sierra Club, that I agree with almost completely as a matter of history, Constitutional analysis and review of repercussions.

Readers who have perused my earlier comments on the Citizens United decision will be aware that I think the “corporations are persons too” jurisprudence to be both wrong and profoundly important, so I am happy to share Pope’s analysis with readers here. Let me note that I am a lawyer (and studied under conservative legal scholars) and don’t think Pope’s analysis is in the least “liberal”.

Without further ado, here are extensive quotes from Pope’s second piece, dated February 3, 2010, The End of the Corporate Zombie? (emphasis added):

There are two clear impacts from the Supreme Court decision to treat corporations as American citizens — regardless of how controlled or where domiciled — for purposes of political spending (if not yet direct cash contributions to candidates). The obvious impact will be a flood of campaign spending by corporations, one that further undermines the substance of a free press and of elections where each citizen’s influence is, approximately, equal. But the second impact will cut the other way. The Citizens United decision was such a naked power grab, such a nihilistic violation of conservative jurisprudence, and it came at such a fractured time, that it might just spawn a counter movement so powerful that the decision’s alleged beneficiaries, major multinational corporations, may come to view it as a disastrously Pyrrhic victory.

Let’s begin with the legal theory. Here’s the majority’s reasoning: We found in 1886 (Santa Clara County v. Southern Pacific Railroad) that “corporations are people.” And we later found, in 1st National Bank of Boston v. Bellotti, that “money is speech, unless delivered directly to a candidate.” Therefore, corporate money cannot be constrained at election time.

The five justices who ruled this way include a number who have professed a judicial philosophy based on the original intent of the language of the Constitution. For the document itself, that means the intent of the Founding Fathers. For amendments to the document, that means the intent of the legislators who drafted and ratified the amendments.

All five justices refer to themselves as advocates of “judicial restraint.” But in spite of the best efforts of Justice Scalia, the majority was unable to cloak its opinion in any garb but naked obeisance to corporate power. They went to great lengths to show that the Founding Fathers, and the drafters of the 14th Amendment, thought highly of corporations as a mechanism for citizens to cooperate. Well and good. But a mechanism is not a person. They claimed that they weren’t being judicial activists — but they picked and chose among previous court decisions — using some, overturning others, and tweaking a third set. And repeatedly they used language that blurred, rather than elucidated, the distinction between a person and a corporation.

Their core finding is expressed as a self-obvious proposition. “Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech.” Why not?

Justice Stevens, in dissent, threw back this gem from Chief Justice John Marshall, in the Dartmouth ruling that established the “originalist” doctrine of corporate rights: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

A “mere creature of law” possessing “only those properties” conferred by law would seem, in ordinary reading, to make it utterly clear that law may also restrict as well as confer properties, and that one of the properties that can be restricted is the spending of money to influence elections.

Corporate rights, unlike individual rights, are “conferred.” That’s how the drafters of the Constitution and the 14th Amendment understood it. But not this five-justice Junta run amok.

What compelling state interest did the majority come up with to justify their breathtaking break with established legal precedent and the clear intent of the Constitution? This wonderfully flimsy bit from Justice Kennedy, writing for the majority, is typical: “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.” That might be a perfectly good argument for a member of Congress to make in proposing to confer upon corporations the right to spend money in elections. But it does not even pretend to find a Constitutional basis for arguing that such a right is Constitutionally guaranteed to a “mere creature of law.”

The majority of course, would find these arguments perplexing, since in the 1886 Santa Clara County case an earlier Court announced (it never really found, so it never offered an argument), that for purposes of the 14th Amendment, corporations were “persons.” In the view of the five-justice majority, Citizens United merely has the courage to perfect that finding — a logic that previous Supreme Courts for more than a century have been too squeamish to embrace. But the Court that heard Santa Clara County did not demonstrate how its obiter dictum finding reflected the intent of the drafters of the 14th Amendment — it merely asserted that corporate personhood was well-established. (Since there is no such evidence, the Court had little choice but to make an assertion.) Indeed, the potential undermining of the Santa Clara County dictum has long stood as the biggest unanticipated consequence of a truly authentic judicial doctrine of original intent. Well, since that doctrine’s own advocates have now so spectacularly abandoned it, constraints on corporate power must be sought elsewhere.

It’s helpful here to recall the warnings of former Chief Justice Rehnquist, who carried his judicial restraint over to corporate rights. Rehnquist dissented in Bellotti, warning that corporations were given limited liability and perpetual existence, but that “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.  “Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist” And neither the Bellotti Court nor the Citizens United Court offered any argued response. …

But if Citizens United is the rotten fruit, then Santa Clara County is the toxic tree. Its impact has been felt not only on campaign law but also on the rights of elected officials and the public to regulate land use, pollution, and environmental degradation. The entire battle of regulatory “takings” is rooted in the notion that corporations are persons. The sense of disenfranchisement that has empowered public anger at the banks makes this a poor moment for a judicially sanctioned corporate power grab. After all, while Congress might pass legislation saying that publicly chartered banks can’t spend billions to defend their bonuses, this Court has just shown that it is unlikely to allow such assertions of democratic power to stand against corporate personhood. That’s a powerful argument for amending the Constitution, and not just to reverse Citizens United but also Bellotti and those parts of Santa Clara County that go beyond a corporation’s necessary economic security, as well.

We ought to fix the whole problem. Corporations ought to have only those “properties” conferred by their charters. And the rights of personhood ought not to be among those properties. That doesn’t mean we don’t need corporations — we do. It doesn’t mean that if we want a vibrant economy we ought not to give them the properties to engage in contracts and conduct business. We should. But they are a mechanism for people to cooperate — not independent persons of their own. Their rights come from us, the citizens of the United States, and they should not be able to lord it over us as if they were citizens. They don’t belong in our politics. And while each employee and shareholder should enjoy the rights of speech, association, and political voice, corporations themselves should stick to doing business, not making laws.

We need chartered corporations — “creatures of the law” — not corporate zombies.

As a liberal environmentalist, Pope fails to see how the Santa Clara County decision enabled corporations to escape the control of the states that created them and licensed them to do business. This led to increasing corporate influence, a neutering of common law protections against pollution, and growing problems that fuelled even greater federal power.

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Carl Pope/Sierra Club: Did Thomas Jefferson Think Corporations Were People? On Kicking Sleeping Dogs (ante Citizens United decision)

July 7th, 2010 No comments

I’ve just run across two pieces of commentary on the Supreme Court’s recent Citizens United decisions by Carl Pope, chairman of the Sierra Club, that I agree with almost completely as a matter of history, Constitutional analysis and review of repercussions.

Readers who have perused my earlier comments on the Citizens United decision will be aware that I think the “corporations are persons too” jurisprudence to be both wrong and profoundly important, so I am happy to share Pope’s analysis with readers here. Let me note that I am a lawyer (and studied under conservative legal scholars) and don’t think Pope’s analysis is in the least “liberal”.

Without further ado, here are extensive quotes from Pope’s September 14, 2009 piece, Did Thomas Jefferson Think Corporations Were People? (emphasis added)

The Supreme Court has just finished hearing oral arguments about whether it should overturn 102 years of precedent and rule that corporations have the same right to spend money to influence elections that citizens possess.

The Court stunned most observers back in June, when it asked for reargument in what seemed a small and narrow case: Citizens United v. the Federal Election Commission. At issue was whether the McCain-Feingold legislation, which banned corporate and union electioneering, also precluded a corporation from distributing a movie highly critical of a political candidate (in this case, Hilary Clinton). That’s hardly an earth-shattering question, except to those involved.

But in asking for reargument in that case, the Court invited the publisher of the movie to make the case that Congress did not have the authority to limit corporate political expenditure, even though as far back as 1902, and as recently as 2006, the Court had upheld that authority. …

The appeal being made to Roberts is that in his confirmation hearing he took a strong stand that the Court should not lightly overturn its own precedents. He presented himself as an incrementalist, a justice opposed to big changes in direction. … Thus, in addition to a New York Times editorial urging a narrow ruling, the Times piled on Roberts with an op-ed by Jeffrey Rosen arguing that how Roberts handles this case would determine whether he goes down in history as another Chief Justice Marshall, Roberts’s stated role model, or instead as a new Earl Warren, the chief justice whom conservatives demonize for judicial overreach.

It’s true that judicial restraint ought to lead Roberts to a narrow ruling in this case rather than overturning a century of precedent. But what’s striking is that no one is challenging the three most conservative justices — yet it’s their position on this case that’s most contrary to their self-declared judicial philosophies. For Alito, Scalia, and Thomas are “originalists”  — justices who claim that it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).

But the Citizens United case brings into stark focus the great, huge buzzing fly in the ointment of the originalists: They don’t believe their own doctrine, not even vaguely. And as far as I can tell, this is almost universally true of those who wear the originalist banner.

Here’s the problem: If you want to throw out what the originalists call “judge-made law” (interpretations of the Constitution that its drafters did not intend), then you don’t get to throw out just Roe v. Wade on abortion, Baker vs. Carr on apportioning state legislatures, and Miranda on defendant’s rights. You cannot board originalism like a trolley, ride it through the cases you don’t like, and then get off back in 1953, when Earl Warren joins the Court, or even back in 1935, when the Court begins taking a more expansive view of Congressional authority to regulate interstate commerce.

No, if you want to argue originalism, you must also throw out all the judge-made law of the last half of the 19th century, too. And it is the cases of that era –cases that established that corporations have rights like individuals — that Alito, Scalia, and Thomas are relying on to make their case for throwing out Congressional regulation of corporate political spending.

The key decision came in 1886, in Santa Clara County vs. Southern Pacific Railway. At the start of the case, the Chief Justice announced that the Court would not even hear arguments about whether the 14th amendment, guaranteed equal rights to all citizens, included corporations — the Court simply declared that it did. In doing to, it ignored the well-established legal doctrine that once a state gave a corporation a privilege it constituted a contract that must be honored but also that the specific privileges granted came with its charter and did not extend beyond it.

Now this was judge-made law with a vengeance. It utterly upset the small-holder character of the original Constitution, with its deeply ingrained mistrust of corporations and other large economic institutions. But even after these cases, the Courts continued to rule that Congress and the states had the right to regulate some corporate political spending. (Indeed, in a 1978 case that restricted the right to limit corporate spending on ballot measures, Chief Justice Rehnquist dissented specifically because he did not feel that corporations were persons for purposes of political speech.)

Now what faces the Court in Citizens United v. the FEC is an effort to complete the judge-made revolution that begin in Santa Clara. Corporations would be granted not only the special privileges of their status (immortality, limited liability, protection from most criminal sanctions) but also the full range of political privileges of American citizens.

And Alito, Scalia, and Thomas don’t acknowledge this enormous incompatibility with their purported judicial doctrine, and few in the media have challenged them on it. (Briefs have been filed with the Supreme Court raising this issue — but they get barely any public notice.)

In the oral arguments, newly arrived Justice Sotomayor raised openly from the bench, for the first time in decades, the question of whether the original corporate personhood cases like Santa Clara were rightly decided. If the Court overreaches in this case, it may find that it has done the thing that Bob Dole used to say was always the worst error you could make in politics — to kick a sleeping dog. Americans have, by and large, forgotten or never heard of the Santa Clara decision. Do Roberts, Alito, Thomas and Scalia really want to remind them?

For those of you who note that Pope didn’t directly address his own question -Did Thomas Jefferson Think Corporations Are People? – let me respond that the answer is clear that Jefferson did NOT think corporations were “people” for Constitutional purposes. I have addressed this in several places, but readers may find this post to be helpful:

#CorpSpeak: “Jefferson Was Right” about the dangers of corporations and of the Supreme Court

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What is a “drone corporation”? I don’t wanna know — I just want Govt to save me, please!

April 19th, 2014 No comments

[cross-posted from the We Build Our Society FB group]

What is a “drone corporation”?

I don’t wanna know — I just want to pretend that I need Govt to SAVE US! from “business” and “free markets”.

“Corporations “un-owned” by their shareholders—corporate “drones”—are far worse corporate citizens and have significantly lower average shareholder returns than firms in which owners still exercise authority over management”

“First, corporations have ascended to levels of unprecedented power in the United States, thanks in large part to legal rulings. The Supreme Court’s decision in the 2010 case Citizens United v. Federal Election Commission, for example, removed virtually all limitations on corporate political spending—a “grotesque decision,” rightly judges Monks. Second, the leaders of the largest and most powerful corporations in the U.S. (ExxonMobil, IBM, and General Electric top the list) have never been less accountable to shareholders. This is because of weak boards and the movement of large ownership positions to passive institutional investors, among other things. The result is “drone corporations,” in which “manager kings” have free rein to pursue their own self-interest. Monks puts more than half of the Fortune 500 among their numbers.

“The dangers in such a situation are obvious. Monks offers up a litany of them, including the gutting of the political system, regulatory abuse, tax avoidance, the mistreatment of U.S. workers, obscene CEO compensation packages—and the list goes on.”

“What makes a corporation a drone corporation?

“By drone corporation, I mean one in which there is no element of effective ownership to monitor or to restrain the exercise of power by the corporate executive,” Monks told Corporate Crime Reporter in an interview last week.

Most major American corporations are drone corporations.

“I would say that about 60 percent of the biggest ones are,” Monks said. “Companies like General Electric. Exxon. IBM.”

Name some that aren’t drones?

“Microsoft, Berkshire Hathaway, Google, Apple,” Monks says.

The key characteristic of a drone corporation?

“Drones were more likely to externalize liability,” Monks said. “In comparing drone corporations to non-drone corporations, we discovered that the drone corporations were distinctly more likely to externalize liability. They were distinctly more liable to be indicted for criminal activity. And the extent of their criminal fines were significantly larger than those for the non drones.”

“There are now a significant number of drone corporations that use the violation of criminal law and the fines and penalties that result as a sales expense that on balance they have concluded is worthwhile.”

“This is true for companies like Pfizer in the pharmaceutical industry. And it seems to be a policy that British Petroleum has followed. They are prepared as a matter of management policy to conduct themselves in such a way as to violate criminal laws, to accept criminal penalties, and then continue to violate criminal law. That seemed to be substantially more prevalent in drone corporations than in non drone corporations.””

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What if Cato held a conference on how the War on Drugs was a massive FAILURE, but no one noted that the Feds and others BENEFIT SPECTACULARLY from all the costs?

December 18th, 2011 1 comment

It might be unfair to judge just from the short clip below (put together by that’s making the rounds, but it appears to be the case that no one at Cato’s Novermber 15 conference (“Ending the Global War on Drugs“) – law enforcement, politicians, journalists, liberals, conservatives, libertarians and foreign officials, all presenting a litany of damning evidence about the tremendous costs of the “War on Drugs” –  little attention was paid to what should be a sad but very evident fact:

the War on Drugs has been a smash hit for our Federal government, in its 230+ year battle to wrest power from the states, fo the politicians who campaign and parade around on “Law and Order” issues, for a host of government agencies (not the least our CIA and Defense and State Departments) and for, of course, a deep pool of contractors.

How can anyone with any understanding of regulatory capture, moral hazard and “public choice” understandings of the workings of indivuduals’ incentives and institutional dynamics fail to see that, for those benefitting from the steady expansion of the War on Drugs that the need to ramp-up in response to its disastrous consequences are not failures or “bugs”, but “features”?

The erosion of civil liberties after 9/11 that has been justified as necessary to keep us safe during a long “War on Terror” were all already well-underway as a result of our War on Drugs.

But a Police State is not a simple necessity, but something that benefits certain groups of people, at the cost of others.

If we ever hope to rein in policies that are destructive to most of us, we need to focus on naming, blaming, shaming and otherwise standing up to and imposing costs on those who benefit from them.

We used to think that we needed a Constitutional Amendment in order to federally prohibit the use of and trade in alcohol – note that tobacco, pot, cocaine and heroin were all untouched at that time. That the Constitution now provides essentially NO check on the Federal government is a good indication of how far we’ve come from those days,  and leave one wondering — do we now need a Constitutional Amendment not only to overturn the ridiculous and radical Citizens United (states can create “corporations” but not limit their ability to finance elections) decision (Senator Bernie Sanders has introduced such an amendment; Larry Lessig thinks a state-convened amending process is needed), but also to prevent the Federal government from regulating certain parts of the economy?

Clearly the Federal Government and those benefitting from it have no intention to relinquish policies that enhance its power.

Here’s the clip:


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#Occupy: journalist-turned-entrepreneur Kirk Cheyfitz says "one dollar, one vote" plutocracy is mobilizing to put down what Gen. Martin Dempsey calls "our Arab Spring"

December 16th, 2011 No comments

I recently ran across some interesting ancedotes and thoughts on the “Occupy” movement and the response to it from elites by investigative journalist-turned-new media consultant Kirk Cheyfitz. Cheyvitz is CEO and Chief Editorial Officer of Story Worldwide, a new media ad agency he founded in 1999. He is also author of the back-to-basics business leadeship book, Thinking Inside the Box: The 12 Timeless Rules for Managing a Successful Business (2003).

With permission from the author, here is his December 5 piece at Huffington Post (emphasis added):

How Much Does America Really Love Democracy?

As police began wholesale attacks on the Occupy Wall Street protests in early November, I attended a dinner party at “the scene of the crime,” as many Occupy protestors call it — the New York Stock Exchange. Hosted by NYSE and arranged by a group called wf360, the event was billed as a night of conversations around questions beginning with “What if…?”

My 200 fellow dinner guests were mostly senior executives, mostly from the financial industry, mostly (seemingly) Republicans. A lot of what was said, however, sounded little like the empty rhetoric out of Washington or cable news. There was widespread disgust with government paralysis and both political parties. More surprising, there was widespread sympathy for the problems of ordinary Americans and a broad appreciation of a central message of the Occupy movement — the message cable news can’t seem to get — that the US needs to get money out of politics and end corporate control of government.

Reflecting the spirit of the evening, one diner, General Martin Dempsey, chairman of the Joint Chiefs, rose to ask, “What if the Occupy Wall Street protestors are our Arab Spring?” He added, “What if they are moving the line between the governing and the governed?”

Arab Spring” holds special meaning for Dempsey. He has spoken with palpable awe of the popular revolutions rearranging Middle East politics. He credits the downfall of Egypt’s Mubarak to “Facebook and social networking, a leaderless organization that rose up and we call the Arab Spring,” Agence France Presse reports. Speaking about these “viral” uprisings to world military leaders in London in June, he said, “I think our imaginations are just beginning to touch the edges of what it might mean….”

Continuing that theme back home, Dempsey stood in a private dining room of the New York Stock Exchange contemplating the rise of such a “leaderless organization” in America. In public and private conversation, he seemed to sway between his military duty to put down insurrections and his devotion to the idea that America stands for the unquestioned goodness of democracy.

When I think about the last few months in American politics, I think about the clashing themes Dempsey conjures. Our support for democracy, in the abstract, and for the growing democratic protests across the world is counterbalanced by our fear of democracy in action and our official tolerance of police violence in multiple US cities against peaceful protesters. In these and other ways, the Occupy movement confronts America with our contradictions.

Let’s look at a few of those contradictions: We live in an America where the bedrock promise of opportunity for all is contradicted by the widening gap between rich and poor; the promise of democracy is contradicted by the dominance of money and corporate interests in our politics; the promise to support freedom is contradicted by our historic support of repressive dictators like Mubarak and our ambivalence about majority rule in the Middle East; our promise of free speech and free assembly is contradicted by use of rubber bullets, pepper spray, beatings and arrests to put down protesters here at home. This list could go on, but that’s a start.

It is obtuse, I fear, not to interpret recent police violence in the US as a sign of intentional and coordinated opposition to the Occupy movement by official America, whether you call that group the 1%, the Establishment, the ruling class or any other name.

For those fond of obtuseness, please remember that Oakland Mayor Jean Quan told the BBC she decided to evict her city’s protesters after discussing the matter with 18 mayors on a conference call. Many of these mayors executed similar evictions and mass arrests immediately after that call, all citing what they termed health and safety concerns. That same week, MSNBC’s Chris Hayes reported on a memo in which a large DC lobbying firm proposed that its client, the American Association of Bankers, pony up $850,000 to create “negative narratives” about Occupy and the politicians who support the protests.

Are the rights of the Occupy movement being violated by the American establishment or are police merely enforcing the law? Assuming that the protestors were, in fact, breaking the law, how should our democracy react to non-violent civil disobedience? Isn’t such lawbreaking enshrined in the founding of the nation and the modern American notion of free expression?

When considering these questions, it is important, first, to see the context. At the heart of what’s going on in our politics is something that left and right broadly agree about: We are in a long-standing crisis and our government isn’t doing anything about it.

In case you are in the tiny minority that disagrees with that statement, let’s remember that the middle class has been shrinking for 35 years as the gap between rich and poor has been widening. There are now 100 million Americans living either in poverty or just fractionally above the poverty line while the top 1% of American earners have seen their outsized share of total wages nearly triple and they now control 40% of the country’s total wealth.

Meanwhile, among the other 99%, misery spreads. Seriously delinquent mortgages started rising again in September, up to 4.9% of all mortgages, according to the New York Fed and the Office of the Comptroller of the Currency. This is roughly half what the rate was at the end of 2009, happily, but still nearly three times the delinquency average for the three decades prior to the crash of 2008. Unemployment, of course, sits at 8.6%, a recent low, after a welcome half-point drop in early December. But for youth it’s double that, for Hispanics it’s more than double and for African-Americans it’s more than triple that. If you are a typical American, you see the majority of America in crisis while the rich keep getting richer and Congress does absolutely nothing to turn things around.

Times are so hard that most Americans now question the country’s longest-running mythical narratives about hope, hard work and social mobility — the bedrock social contract that we call the American dream. Pew’s Economic Mobility Project, in fact, finds that a majority of Americans (54%) now feel the government helps the rich “a great deal,” but only 6% say it helps “people like me.” In short, by a 9-to-1 margin, Americans see the game is rigged against them.

It is in this context that Occupy Wall Street sprang up in Manhattan two months ago with a central message about the essential unfairness of America — the growing disparity between rich and poor; the escalating clash between the rights of flesh-and-blood persons with the expanding rights accorded to money itself and to legal-fiction persons known as corporations. (Harold Myerson recently referred to the Citizens United decision as “one dollar, one vote.”)

My point is simple: the protests are actually about something (or a set of somethings) very seriously wrong with America. The protests are about things that many of us agree deserve our serious attention. The substance of the protestors’ complaints are so serious and widespread, in fact, that they have given rise to the kind of “leaderless organization” that is bringing down governments in other parts of the world; so serious that America’s highest-rankling military leader wonders out loud about the similarities among Cairo, Tripoli and Oakland.

I make this point because we should acknowledge that if the First Amendment was meant to protect any kind of speech at all, it certainly was meant to cover what the Occupy movement is doing: identifying inequities, agitating for redress and dramatizing the need for change. We need to acknowledge that the First Amendment is a safety valve that actually protects the 1% from revolution by allowing for political change.

So I am troubled, to say the least, by official America’s intolerance of free speech, particularly when the speech addresses subjects so central to our expressed national beliefs and so important to our political process. I think we should all be troubled.

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Things Fall Apart: Guest post on further developments in the Dangerous Corporate "Free Speech" Balderdash

June 28th, 2011 2 comments

I have commented extensively on the decision last year by the Scalia majority in the Supreme Court’s decision in Citizens United.

An important point is that it is perfectly clear that (1) the Founders hated corporations and were seeking to protect inviduals against government in the First Amendment, and that (2) in the Fourteenth Amendment the Congress and states were trying to secure the liberty of freed slaves and non-citizens (like the many Chinese at work on railroads) against excesses by states. But the most important point is that corporations are not real flesh-and-blood people, but the creations of states, which thus have every right to condition the grant of corporate status (and the special benefits included in such grant, such as legal entity status, limited liaibility of shareholders, unlimited purposes, unlimited life, etc.) on a curtailed ability to influence political decision-making. Limits on “corporate speech”do not, of course, pose any limits on the rights of speech of the individuals who own, manageor work within particular corporations).  Related points are that the incentives faced by decision-makers within corporations are different from those faced by individuals within communities, that corporations have special advantages over citizens in seeking to influence government, and that corporations are becoming increasing entangled in rent-seeking behaviors.

These are fundamental points that far too many are overlooking.

I recently stumbeld across a June 23 article at The Atlantic by Garrett Epps, a former reporter for The Washington Post, who is a novelist and legal scholar, and teaches courses in constitutional law and creative writing for law students at the University of Baltimore. Epps was writing in response to further, recent judicial developments in the wake of Citizens United.

While I don’t agree wholly with Epps and find his analysis incomplete, I thought it worth bringing his article to your attention. Epps kindly agreed to allow me to cross-post his article here.

I note that the bolding is mine:

Constitutional Myth: Corporations Have the Same Free-Speech Rights as Individuals

By Garrett Epps

The problem isn’t “corporate personhood”; it’s simple-minded interpretation that refuses to take note of the real function of the First Amendment

On June 16, Judge James C. Cacheris of the Eastern District of Virginia ordered charges dismissed against two criminal defendants charged with violating federal election laws [Actually. he made this decision in May, and just re-affirmed it.] The defendants allegedly allowed corporate employees to attend Hillary Clinton campaign fundraisers, then reimbursed them for the cost out of funds of their corporation, Galen Capital Group. If the allegations (as yet unproved) are true, this was a direct violation of 2 U.S.C. 441(b), which forbids corporations from contributing to federal election campaigns.

Judge Cacheris contemptuously brushed the statute aside as a restriction on the corporation’s free speech rights. The Supreme Court has never held the statute unconstitutional, but the judge did it for them, relying on their latest campaign finance ruling, Citizens United v. Federal Election Commission.

The Court in Citizens United went out of its way to say it was not invalidating contribution limits, but Judge Cacheris explained they couldn’t be serious:

Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified. . . . Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the “apple” and the “orange.”

Judge Cacheris’s opinion is a prime example of right-wing judicial aggressiveness and simple-minded constitutional mythology. Like levees on the Mississippi, the extremely modest restrictions on corporate domination of American politics are being deliberately breached; the result, as in New Orleans in 2005, is a man-made disaster, a flood of corporate money that is distorting, and indeed threatens to destroy, American democracy.
The First Amendment exists, in the new logic, only to protect the right of those with money to drown out those without
Almost every literate American knows that in 2009 [sic; actually, it was 2010], the United States Supreme Court held that corporations must be given the same free-speech rights under the Constitution as ordinary Americans to fund advertising advocating the election or defeat of political candidates. (The Court did explain that its opinion applied only to independent expenditures, not to direct contributions, but Judge Cacheris apparently saw them winking at him when they delivered that part of the opinion.) The Court gutted the McCain-Feingold Act, the first significant (even if timid) attempt at campaign finance reform since the laws passed in the wake of the Watergate scandals. What that means, of course, is that corporations, with their enormous financial resources, could flood the airwaves with ads from deceptively titled “issue groups” with names like “Americans for Prosperity” and “American Future Funds.” This is precisely what happened in the 2010 campaign, when these anonymous funds swamped Democratic and progressive candidates with semi-anonymous attack ads in the days before the election. Perhaps coincidentally, those elections produced a radical shift to the right in the membership of both the House and the Senate.

To hear the right discuss it, though, anyone who questions Citizens United is spitting on James Madison’s grave. “Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance,” Sen. Mitch McConnell (R-KY), who is to campaign finance laws what Darth Vader was to Alderaan, crowed on the Senate floor after the decision. Rep. Mike Pence (R-IN) also explained that “the Court has taken important steps toward restoring to the American people their First Amendment rights. This decision is a victory on behalf of those who cherish the fundamental freedoms protected by the First Amendment.” Sen. John Cornyn (R-TX) told the New York Times that “I can’t think of a more fundamental First Amendment issue.” He also noted that, by a bizarre coincidence, the decision would “open up resources that have not previously been available” to the Republicans.

There’s another way to look at it. In his dissent in Citizens United, Justice John Paul Stevens–a moderate-conservative Republican–spoke for many citizens when he said, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

The problem is not that corporations are “persons” under the law. That’s been the law for more than a century. And the problem is not the mere idea that corporate “persons” have free speech rights. Of course they do; otherwise the government could prohibit the New York Times Co. or MSNBC from engaging in news coverage. [wrong; the First Amendment also specifically mentions “the press”]

The problem is the kind of simple-minded interpretation of the Constitution I have discussed elsewhere. The current Court in Citizens United claimed to be choosing between a system in which corporations would have no free-speech rights and one in which corporate “persons” must have precisely the same free-speech rights as natural persons do. There surely is a middle position. In fact, our laws treat many kinds of “persons” differently for various purposes–citizens differently from non-citizens, minors differently from adults, members of professions differently from non-members. Each group’s rights–even important rights like free speech–are treated differently for some purposes. High-school students do not have the right to criticize their school administrations; college students do. Minors do not have the right to purchase sexually explicit entertainment; adults do. Non-citizens cannot contribute to federal political campaigns; citizens can.

That a corporation is a “person” does not mean that its participation in politics has to be completely free of regulation. Any sane system of laws would take into account the facts that corporations control vastly more money than individuals; that they never “die,” and thus can influence events indefinitely; and that, by law, they must (and do) concern themselves with one thing and one thing only–making profits for their shareholders.

Over the past generation, the conservative majorities on the Court have systematically destroyed any idea that the First Amendment relates to democratic self-government, or civic equality. Earlier this year, when the Court considered Arizona’s Clean Elections Act, Chief Justice Roberts asked the lawyer for Arizona this remarkable question:

I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, “level the playing field” when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?
The First Amendment exists, in the new logic, only to protect the right of those with money to drown out those without. This is such an obtuse reading of the Constitution that anyone can be forgiven for thinking it was a self-interested, overtly partisan decision by a five-Justice majority of conservative Republican appointees deeply disappointed that their party had been roundly defeated in the 2006 and 2008 decisions.

Having said that, Barack Obama and the Democratic Party bear their share of the blame for this sorry mess. By wrecking the public-finance system in the presidential election of 2008, the Democrats did a lot to convince reasonable people that their concern about money in politics was as self-serving as the Republicans’ concern for corporate “liberty.”

The proper vision of corporate “personhood” would consider the meaning of the First Amendment not as a simple on-off switch but as a provision that protects a key ingredient in democratic self-government–speech to and about politics by ordinary people.

As Judge Cacheris’s decision demonstrates, the rot has progressed almost to the terminal stage. But remember the worlds of Miracle Max in The Princess Bride: “It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead.”

Equality and self-government, as ideas in the law, are mostly dead–but not all dead. The battle is not over. Sustained popular pressure may force right-wing courts and activist groups to back off from their continuing demands for special political rights for corporations and the rich.

[More on the decision by Judge Cacheris here: and  and]
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A productive, progressive, anti-corporatist libertarianism? Ron Paul and Ralph Nader build bridges at Judge Napolitano's

January 25th, 2011 No comments

Ron PaulRalph Nader and Andrew Napolitano are joining forces to emphasize common ground between right-libertarians and progressive Left.

This holds some promise of steering dissastifaction with government by the Tea Party Right into positive directions, possibly blunting efforts by Big-Government GOP to capture and emasculate the Tea Party movement. It may also lead some on the Left to question their reflexive hatred of Tea Partiers and re-examine their assumptions that what is needed is MORE government.

Here’s a clip of a joint appearance by Paul and Nader on Judge Napolitano’s Freedom Watch program on the Fox Business channel on January 19, 2011: 


As noted by the liberal The Raw Story (‘Ron Paul, Ralph Nader agree on ‘progressive-libertarian alliance’) (emphasis added):

In this corner, a libertarian, tea party hero who ran several campaigns as a candidate for US president on the Republican ticket. And in that corner, a progressive icon of the left who also ran several campaigns for the US presidency but on the Green Party ticket.

One might think the two men, seemingly ideologically opposed to one another, would rather argue than help one another.

However, on Wednesday’s broadcast of Freedom Watch on the Fox Business channel, Judge Napolitano sat down for an amiable interview with Rep. Ron Paul (R-TX) and Ralph Nader to discuss a progressive-libertarian alliance in the 112th session of respective chambers in Congress.

Nader, who has recently called this coalition “the most exciting new political dynamic” in the US today, explained that it works well because both groups stand against corporatists who believe government should be run in the interests of corporations.

“I believe in coalitions,” Rep. Paul echoed. “They talk about we need more bipartisanship, and I say we have too much bipartisanship because the bipartisanship we have here in Washington endorses corporatism.”

Paul added that he agreed with Nader on a host of issues, such as cutting the US military’s budget, ending undeclared US wars overseas, restoring civil liberties and civil rights by dumping from the Patriot Act, and withdrawing from the NAFTA and World Trade Organization agreements.

“I think we should come together and work together, and I think we can,” he said, noting that the coalition had previously worked on deficit financing solutions.

Rep. Paul and Sen. Bernie Sanders (I-VT), the most conservative and most liberal members of their respective chambers, joined forces last session to fight for an audit of the Federal Reserve, a private institution that handles America’s monetary policy, which Nader explained is under no legal control of Congress.

 I would add:

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