I’m moving to Delaware! Yep, soon I’ll be an official resident of “the First State.”
My corporate counsel buddies have always told me that Delaware has the most corporations domiciled there because Delaware corporation laws are very liberal (read vague, ambiguous and authorizing anything one might wish their corporate entity to do while being hostile to lawsuits against corporate management). Delaware is very proud of its reputation as a corporate haven.
And, soon thereafter I will have set my very own corporation “person” on the path to be President of the United States. The recent US Supreme Court decision in Citizens United v. FEC makes all things possible for our state’s corporate citizens.
I’ll move to Delaware because our decennial census did not count the over 1 million corporate citizen persons who reside in Delaware. The US Census takes place every 10 years as mandated by Article 1, Section 2 of the US Constitution. Census data are used in apportioning the numbers of US House of Representative seats for each state, the numbers of Electoral College votes for each state and the distribution of billions in federal aid among the various states. The actual numbers used from the 2010 Census will not be distributed to the states until February, 2012.
Next I’ll sue in federal court to overturn the 2010 Census for failure to include any of Delaware’s 1 million corporate citizen persons in the Census count for all of the government goodies that are apportioned using Census numbers. Citizens United actually gives us an idea of the numbers of corporate citizen persons disenfranchised by the failure to include corporations in the Census (5.8 million for-profits filed tax returns in 2006, 558 U.S. ___, p.22 (2010)).
“Frivolous lawsuit!” you say? Nope. After the decision in Citizens United v. FEC, corporations are people and have the same free speech rights as any other person under the First Amendment and therefore under all the laws regarding the census and apportionment of federal goodies by the United States pursuant to the 14th Amendment to the US Constitution, Section 2.
“Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed…”
But, that’s not all, folks! The 14th Amendment also now makes corporations the same as you and me. “Corporations are people, my friend.”
Remember how when we were kids we were told that anybody can grow up and be President of the United States? Someday soon, maybe one of my new states’ properly recognized and federally certified corporate citizen persons will run for and win the Presidency of the United States. The velvet glove will be off then and the corporations won’t have to get together and invent a candidate and call him George W. Bush or Mitt Romney, again.
Gee, maybe that corporation will be one of my own.
Citizens United did not give corporations personhood. That decision was made over 100 years ago. All Citizens United was about was whether the government could censor political content. The obvious answer to that would be a resounding no.
All citizens United did was overturn a part of BCRA, passed in 2001. Now maybe I’m wrong here, but did BCRA usher in an era of clean elections, or even a better system than we had before?
Actually, the whole slippery slope of corporations as people began with the “Darmouth College” case. The Citizens United case did not just prevent government censorship. Befor reaching any question about prior restraint, the Court had to make a determination of the scope and breadth of the speaker’s rights, if any, under the law. The Citizens United Court essentially “incorporated” unto corporations the same rights and privileges as a natural person under the First and 14th Amendments and by extension, the rights to vote and hold office and be counted in the Census. Hence, my article.
All rights are not incorporated as a whole. That’s why the Supreme court in Heller had to determine if the 2nd amendment was incorporated against the states. We all agree that corporations have 1st amendment rights. If the government tried to ban a book or a movie, we’d call it censorship and stand beside the 1st amendment proudly. If corporations have 1st amendment rights, and they do, not just according to the Citizens United majority, but to the minority as well, then they have the right to engage in political speech as well.
The issue at hand in Citizens United, according to John Paul Stevens, was whether the restrictions in BCRA constituted a reasonable restriction on “time, place, and manner” of political advocacy. To Stevens, it did, being limited to the airwaves, 30 days before an election, funded by corporate money. And if the government had presented its case in that limited fashion, Kennedy probably would have agreed with Stevens. But instead, the government’s lawyers were asked if BCRA gave them the power to ban books. They said it did, although of course they’d never, ever do that. That was too much for Kennedy, and so thus we got the decision we got.
The issue was whether the alleged wrong to be prevented, “corruption”, was sufficiently salient to allow prior restraint under BOCRA. The Court said “No!”, we got screwed and “corporations are people too, my friend!”
The issue of personhood was central to whether prior restraint for the proffered reason was thereafter allowed at all. The court then said that based upon the record, no foul. The Montana Suppreme Court developed an extensive record of corruption from so-called “corporate money as speech” and rejected Citizens United’s rationale on that factual basis. The case will be taken up next term (or sooner!). EGAD, my corporation had better file soon!
http://www.huffingtonpost.com/2012/01/04/citizens-united-montana-supreme-court-corporate-spending_n_1182168.html
You wouldn’t tolerate prior restraint on corporate speech in the case of art, why would you tolerate it in the case of political speech?
If we hadn’t spent decades calling any attempts to control offensive content in movies and books “censorship”, maybe there’d be a leg to stand on. But it wasn’t just the courts that established that corporate speech is protected by the 1st amendment. We all did, unless we’re admitting that the Religious Right was right all along. We can’t just change course now or say that political speech is different. The 1st amendment was written to protect political speech first and foremost, not just to protect R-rated movies.
Either corporations have 1st amendment rights or they do not. There is no partial answer here, and there is no “some corporations do and some corporations don’t”. Good luck trying to write the legalese into an amendment that will get you what you want.
I agree with Adam that the case was poorly argued (wouldn’t have been the first time) and that we have a result which was probably never intend by anyone. The difficulty was not so much corporate personhood but rather whether a corporation could co-opt the de facto proxy of its members and speak on their behalf through the medium of money.
Money is the issue—is money speech? If not, can restrictions be placed on it? In principle, all agree, but in practice we end up, in this instance, controlling the products of money, i.e. campaign material, which is speech. The two things are inextricably tangled, so probably a more legalistic aspect was attacked in Citizens United, leading to what we have. At least, that’s my take away.
Follow-up—do corporations have 1st Amendment rights? Yes, but we have to ask ourselves in what way. We restrain speech all the time. As a matter of principle, this all ends up revolving around the use of money to promote specific speech, and the question that needs asking is “Is my speech equal to his speech.” We all have a right to speak. In theory, we all have a right to spend money any way we want, but this begs the question of access. With certain rather narrow exceptions, we all HAVE speech—but we do not all have money. There is a fundamental inequity that needs to be addressed there.
And we are loathe to do it because we don’t want to mess with the system on such a fundamental level.
Seems to me that what we had before Citizens United was a system where money in politics could be controlled in various ways. As long as we didn’t engage in blatant censorship, we were on firm ground and could get away with being a little arbitrary. But the attempted censorship of Hillary: the Movie was something almost none of us could agree with. And so it was hoped that the court would decide for Citizens United, but with a narrow decision. Kennedy addressed thoroughly in his decision why that was no longer possible given the circumstances of the case and the government’s arguments.
We already are allowed to control direct donations to candidates and parties. If you asked any reformer in 1990 what they wanted, that’s exactly what they’d tell you: limits on direct donations and an end to corporate soft money. We got that, but something unexpected happened: corporations started taking their advocacy directly to the public. By doing that, it left reformers with only two options: give up, or censor the ads and hope they could get a court to see it their way. The issue had come to a head and there was no way around it.
Since you seem to be a fan of Greenwald, you should go back in his archives and read his take on Citizens United. He also agrees with the court’s reasoning, however much he hates the outcome.
There is one other way to counter the effects of direct corporate advocacy which would also strengthen democracy as well. That would be to actually demand, receive, and use the equal time requirements of FCC licensed media outlets, and hold them to it in the spirit in which it was intended—not put some hapless grassroots group’s ad on at three in the morning when no one is listening, but during prime time in order to effectively compete with the paid time.
Mark: Perhaps there was a time when license renewal for the TV stations really meant that they had better show some real public service, but it doesn’t mean much of anything any longer. My understanding is that in some countries such as Norway politicians are not allowed to buy TV ads.
Mark: Here is how difficult it is these days. http://www.broadcastingcable.com/article/462234-MAP_Asks_FCC_To_Vacate_Decision_On_Station_License_Renewals.php?rssid=20065
I agree, that the license process should be meaningful, and it should include prime-time donated time to community interested groups, even those with far different viewpoints than those of the station management. After all, the wavelengths belong to the People, not to the station. They should only be allowed to use them if they use them responsibly, and for the most part they don’t.
Well, Erich, then we should look at making it mean something again.
Yeah, but then we’re getting into media control. That was never kosher and is even less kosher given our current 1st amendment values. We had those controls when a lot of people were also okay with censorship in general. They’d never be tolerated today.
The best move is probably public financing while still allowing whoever wants to advertise to do so independently. Just make the public financing generous enough that independent expenditures have trouble competing. But I have a feeling that won’t satisfy reformers much either, because nowadays a $10 Youtube political video can go viral and influence an election more than a $10 million ad buy. It’s impossible to predict exactly what is going to have the biggest effect on an election, and I suspect that reformers want to even the outcomes of speech as much as they do the amount of money spent.
Now we’re talking really dangerous here. The Religious Right has been trying to get stations to be responsible as well. What makes their version of censorship less valid than yours?
Besides, broadcast TV keeps on declining in significance. Cable can’t be regulated, there’s no limitation to resources like there is with the airwaves to justify regulation. And internet grows exponentially in significance. The internet is saturated with political ads on the most popular sites now. Does anyone here advocate controlling that somehow? Because it’s an issue that reformers will have to grapple with sooner or later.
Adam:
Here are the words of FCC Commissioner on the duties of stations:
http://www.nytimes.com/2007/06/02/opinion/02copps.html?_r=2&pagewanted=print&oref=slogin
I have watched local “news” for years, as well as a (severely diminished over the past decade) amount of local programming. Based on what I’ve seen, local stations treat the FCC licensing requirements like a joke. “Informing voters” requires far more than having the station serve as the station owner’s megaphone for it’s personal opinions. It’s a matter of providing a variety of opinions such that the viewers would be well-informed voters able to meaningfully participate in their democracy.
Seems to me that the public interest is best determined by the public. And since the broadcasters are catering to the public, they are doing their jobs. They are serving the public interest.
There’s a lot of arrogant people running around squawking about what they think the public needs to know. But again, the public should decide that, and the public has decided that they like “if it bleeds it leads”. I don’t care if the media lies their butts off, if that’s what the public wants to see, then the public is entitled to see it.
The public interest cannot be defined by elites. If the public wanted to see Masterpiece Theater, it would be on CBS. The public would rather see the Simpsons.
OK, call me paternalistic, but I think that the people need to know what is really going on, even if they are mesmerized by the most of the vapid garbage broadcast by the mainstream news. Far from the fray, Congress and the FCC committed that stations would broadcast at least some useful information allowing people to be informed voters. Yes, many people will ignore that information, but it is nihilistic to stop trying, and it betrays the fundamental principles of the Constitution.
Adam, what is your solution to the country’s dramatic slide into ignorance? Or do you have a stake in the outcome other than watching the tragedy unfold?
Adam: David Stockman, an ardent capitalist, criticizes the leveraged buyouts engaged in by Mitt Romney’s activity at Bain, labeling this behavior speculation, crony capitalism and “an inside job.” This interview occurred on Dylan Ratigan’s show today: http://www.dylanratigan.com/2012/01/23/david-stockman-on-mitt-newt-and-crony-capitalism/
Stockman hammers Obama as well, based on his acquiescence regarding out-of-control Wall Street banks. He points out that the elephant in the room is the Federal Reserve, who is churning out endless money, which is bloating the financial sector. He urges that we need to bring back Glass-Steagall.
Adam,
If the influence of the traditional broadcast media is declining as much as you suggest, why is so much private money spent on it?
As to media control, there is, I think, a qualitative difference between giving access only to the highest bidder and opening up a public space for more speech.
The rules governing the use of the public airwaves were created a time when television had only a few channels and it was the primary means of entertainment. Around the time the Fairness Doctrine was discarded, Americans had an option if they didn’t like what was on the airwaves: cable TV. Then satellite. Today, the internet. Many Americans are discarding their TVs entirely in favor of Hulu and Netflix. Slapping those rules back on the public airwaves will just mean the public will no longer watch what is on the public airwaves.
Maybe I’m just too optimistic, but I find that the public is getting smarter, not dumber. Voter turnout is increasing, and thanks to the internet, voters are learning more than they ever did when relying on the broadcast or print media. Used to be that if a few influential journalists didn’t think something was newsworthy, it just never got reported. I don’t think that was a particularly good time for the public, having to rely on Ed Murrow and Walter Cronkite to decide what they needed to know and simply not telling them what they didn’t. Now when I hear a story I can get 1000 different takes on that story. What does Limbaugh think? How about Maddow? Glenn Reynolds? Beck? Matt Yglesias? Tim Hogan? All of this information means that people have to sift and seperate the truth from the fiction, but the necessity of doing that is making people better news consumers, not worse.
Mark, the influence of traditional broadcast is still by far the most important, but how many more electoral cycles will that be true? The internet is exponentially more important now than it was in 2008, and in 2008 it was exponentially more important than it was in 2004. We will not have grown old by the time the internet is the primary medium for political advocacy. And as I said before, you already can’t regulate cable. There’s no justification for it, since there is no spectrum limitation.
But if you are convinced that the broadcast airwaves are the key to campaign finance regulation, that is an avenue for partially overturning Citizens United. BCRA went further than to control the airwaves, it even gave the FEC the power to control book publishing and moviemaking, whether or not that’s what McCain or Feingold intended. If a campaign finance bill was drawn up applying strictly to the broadcast spectrum, it would probably pass constitutional muster. I think so, anyway.
Adam Herman
The FCC, the FRC before it and the Commerce department before that, acknowledging that the radio spectrum is a limited public resource and must be managed, have generally ruled in favor of big business.
Perhaps the fact that commissions employ technical experts representing the field they are tasked with regulating comes into play, but radio band plans allocate frequency band to military, government, corporate and private use in that priority.
Broadcast TV has been changing and is currently the telecomm companies represented by the FCC are pushing privatized subscription only broadcast TV.The move to digital tv in the US was largely prompted by the digital tv development in Japan, and to protect the business interests of the US Set manufacturers, several suboptimal dvb format were adopted, all incompatible with the Asian and European standards, thus protecting the US companies from “unfair” competition.
The problem is that speech which is bought and paid for is not in any way shape or form “Free”, Corporate media thrives on payola, which is okay if you are marketing a record, or a movie, but when you are promoting a political agenda it is subversive and even seditious. This is why corporation, which are essentially fictional organizational facades posing as persons to limit the financial liability of the investors do not have constitutional rights any more that fictional characters in a teleplay or novel have any constitutional rights.
Thanks for the technical info about TV. As for the constitutional rights of corporations, there’s three problems with that view:
1) More than 130 years of precedent says corporations are persons, and the minority in Citizens United made it clear they weren’t questioning that precedent.
2) If corporations don’t have constitutional rights, then the vast majority of published or broadcast media is censorable at will by the government, without due process. If corporations can’t run political ads without the government’s permission, then they can’t publish books or produce movies either.
3) Few, if any people, actually believe corporations don’t have rights, because if we did, we wouldn’t cry “1st amendment!” when a book got banned. Nearly all books are published by corporations, so in theory this should not pose a problem for those who believe corporations have no rights.