This, written by Glenn Greenwald at Salon,
But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws.
essentially translates as “We have a strange set-up where completely different things are nonetheless given the same legal label.” The conclusion which Greenwald suggests (though he expresses misgivings) is the same which the Supreme Court recently arrived at: that the First Amendment makes unconstitutional restrictions on the use of money by corporations for political purposes.
The flaw is obvious. That the ACLU and Exxon are legally labeled the same thing is not an immutable and natural feature of the legal system. It’s a choice, and like all choices, one that could be changed. “Corporation” is not some inherent label that has been handed down with the Commandments, and figuring out a way to separate those groups created specifically to put forward a political agenda and those pushing a political agenda to serve their larger money-earning purpose should be the goal, rather than simply handing General Electric the (financial) keys to the electoral process.
P.S. And not to pick on Greenwald, but this, from an earlier part of the column:
My skepticism is due to one principal fact: I really don’t see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: “banks own” the Congress). Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally.
shows a grievous ignorance of most of 19th century American history.
P.P.S. And, really, just because I can: these seem appropriate to the situation.
11 comments
January 25, 2010 at 10:56 am
Jesse A.
Because that’s exactly what we want, government policy makers deciding which organizations have the right to free speech and which don’t.
January 25, 2010 at 11:13 am
Ahistoricality
re: demotivators. This one seems particularly apropos:
CORRUPTION: I want either less corruption or more opportunity to participate in it.
January 25, 2010 at 11:32 am
silbey
Because that’s exactly what we want, government policy makers deciding which organizations have the right to free speech and which don’t.
The Supreme Court is a “government policy maker,” too.
January 25, 2010 at 11:44 am
zunguzungu
Exactly. The conceit that the supreme court is only interpreting the law (and not making it like evil activist judges) is a fallacy that Greenwald is unfortunately playing into. The Kennedy reasoning might be a plausible opinion, “good law” as Greenwald puts it, but that neither means its the only one nor necessarily the best one. I have a meandering post on this, but to me, the bottom line with Greenwald’s argument is that even his argument for “the law” instead of worrying about “outcomes” is nested within the argument that adherence to the constitutional writ will produce better outcomes (i.e. avoiding “The bush era”). And that case is completely debatable, in a way that his “this is the law” bottom line sort of shrinks away from actually doing. Hope he’s right, though.
January 25, 2010 at 2:23 pm
stevenattewell
I also liked the side-stepping of corporate personhood.
Because that’s totally not important.
January 25, 2010 at 2:49 pm
elizardbreath
The conceit that the supreme court is only interpreting the law (and not making it like evil activist judges) is a fallacy that Greenwald is unfortunately playing into.
Is it a fallacy? I’d say that in the con law context, there are good and bad outcomes, and there’s honest and dishonest law (I’d normally say good and bad law, but that’ll confuse things.) I’m nowhere near an originalist, and I’d say that there is a wide range of outcomes that are compatible with the constitution — of the things the Supreme Court could do on an issue that would all be honest, some could be good and some could be bad. But there’s also a range of outcomes that are absurdly incompatible with the constitution, and all of those are dishonest.
For a lawyer, when you see an unpleasant decision out of the Court, the tendency is to check whether it’s plausibly honest or not. If not, you raise a stink about how it’s bad law leading to a bad outcome. If it’s plausibly honest, just bad for policy reasons, I have a tendency to think of it as my problem as a citizen, but not something I’m going to bitch about as a lawyer.
I haven’t gotten myself up to speed on Citizens United, so I don’t know if I think it’s honest or not. But I get the impression from Greenwald that he thinks it’s honest, and that it’s a mixed bag in terms of good and bad results.
January 26, 2010 at 1:18 am
Nick
If Corporations are People, and protected by rights of personhood in the constitution, then I think an amendment or two prevents them from being bought and sold as that is slavery for a person.
No?
January 26, 2010 at 3:44 am
ajay
Nick: not only that, but it should prevent them from being owned, full stop, by public shareholders, by private owners, or by other companies. I think that a trust would still be OK – the trustees would be in the same legal positions as, say, the guardians of a minor or someone who’s not competent to manage their own financial affairs. They wouldn’t own the company.
And I think that, if your company was formed more recently than 1991, you shouldn’t be able to shift its registration from (say) California to Delaware in order to avoid taxes. That would count as “transporting a minor across state lines for immoral purposes”.
January 26, 2010 at 11:12 am
zunguzungu
elizardbreath,
It’s a tough question, and I don’t really know the answer. But what I object to is Greenwald’s tone of “actually the law is simple,” when it is already clear it isn’t. This is a ruling that makes corruption statutes meaningless: since the managers of corporations have a fiduciary duty to maximize corporate profits, and corporate resources can now be used to influence our elections, corproate executives now seem to be required by the basic logic of the corporation to break 18 U.S.C. § 201 : US Code – Section 201: Bribery of public officials and witnesses:
(b) Whoever -
(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or
entity, with intent -
(A) to influence any official act; …
shall be fined under this title or imprisoned for not more than two years, or both.
(taken from Dave)
My point is simply that Greenwald’s certainty is unmerited, and unhelpful, in that it only reinforces a certain right wing talking point that needs to be treated as the fairy tale it is. And his law > outcomes assertion is just wrong, as you yourself illustrate: it’s always a mixed bag.
January 26, 2010 at 6:20 pm
bitchphd
Not to mention that Exxon has shitloads more money than Planned Parenthood. Greenwald is being a dumbass.
January 26, 2010 at 7:56 pm
kathy a.
and — the mission of a for-profit corporation is fundamentally different from the missions of non-profits. the first is supposed to grab as many bucks as possible, and do everything possible to keep the bucks flowing their way. entities like the ACLU and PP tend to spend their bucks trying to provide services and protections that are their reasons for being.