ITT: Citizens United Get's a Devil's Advocate

[Roly Poly Oly-Garch]

This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

But to return to, and summarize, my principal point,which is the conformity of today's opinion with the original meaning of the First Amendment. The Amendment is written in terms of "speech," not speakers.

A lot about the Citizen's United decision is strange to me. For one, Citizen's United presented the case that "as-applied" to their case McCain-Feingold was unconstitutional. I agree with this. The majority, though, dismissed the "as-applied" argument and declared the law facially unconstitutional. The arguments they present are not without merit.  Having to go to the Supreme Court to determine whether speech is constitutional is kind of a big restriction, for instance. What bugs me about this decision is it's absolutely the first time I've ever seen this court answer a broader question than it's asked. In fact, it's disturbingly impressive the lengths this court usually goes to to avoid answering even the narrowest questions it's been asked. Can the military detain U.S. civilians as enemy combatants? Well, yeah, sometimes, but they're not exactly sure how or when since the case wasn't filed in the correct court in the first place. That sort of thing is par for the course. Declaring that the Constitution states that corporations are people with free speech which is also known as money, when they were simply asked if advertising an on-demand political piece is something congress should have the right to restrict, is way out of character. They've ducked gay marriage for eons. Why were they so quick to jump on corporate personhood, without even being asked about it?

Cynicism inducing questions aside, the above quotes, taken from two majority opinions, are something worth thinking about. It's hard to argue against the proposition that more opinions are better than fewer. Speech is the thing. If the speakers are corrupt, if the politicians are corrupt, if people are duped, those are things that should be addressed on their own. Restricting the what, who, when and where of an opinion is a supreme cop-out, really. Also, saying GM can't pay a PAC to do electioneering for them, is saying that GE, or some other corporation entangled with a "legitimate" media outlet is going to be doing all the electioneering. Who has had more influence on U.S. policy, the Koch brothers or William Randolph Hearst? Rupert Murdoch doesn't really need a Super-PAC.

So now that I've played the Devil's Advocate for the Citizen's United decision, what's the alternative? A democracy that is bought and sold by a dozen billionaires instead of just a couple? Doesn't really sound any better to me. I've got some ideas. Let's hear yours.

[Q. G. Pennyworth]

Ban political advertising, period? Sure, you have media people who have access to an audience, but there are existing measures in place to try to keep that in check. Less goddamn money in campaigning the better, IMO.

[Placid Dingo]

General request; can OPs please give a brief overview?

Anything that doesn't have the word 'Rudd' in it isn't getting news time over here ATM.

[Doktor Howl]

Ban political advertising, period?

That in turn violates two clauses of the first amendment.

[LMNO]

General request; can OPs please give a brief overview?

Anything that doesn't have the word 'Rudd' in it isn't getting news time over here ATM.

http://en.wikipedia.org/wiki/Citizens_United

Basically, a PAC made an anti-clinton video too close to the day of the election, violating a provision in the McCain–Feingold Act (which deals with campaign contributions).  That provision was overturned by the Supreme Court.  The implications of this are that corporations, nonprofit corporations, and unions can legally spend as much as they want, whenever they want, on political advertising; and so Super PACs were born.

So, money is speech, and is protected by the 1st amendment. 

[Q. G. Pennyworth]

Ban political advertising, period?

That in turn violates two clauses of the first amendment.

"Advertising" is not a function of the press, and can be argued not to be a form of protected speech.

[Doktor Howl]

Ban political advertising, period?

That in turn violates two clauses of the first amendment.

"Advertising" is not a function of the press, and can be argued not to be a form of protected speech.

It certainly is a function of the press, as the press cannot exist without advertising.

In addition, if you start banning advertisement of products, services, or candidates that are not themselves illegal, you open the door to all manner of abuse.

I can think of three things off the top of my head that would be targeted immediately by the right wing screwheads alone, once that door is opened.

1.  Advertisementa for Gay clubs or dating services.

2.  Advertisements for birth control.

3.  Advertisements explaining the actual results of a bill in congress (this would be the easiest extension of the rule).  SOPA is one example that comes to mind.

[Doktor Howl]

It would also utterly prevent the possibility of any other political organization than the so-called "two" parties we have now.

[Cain]

There's only one effective form of regulation of political advertising, and that is libel and slander charges, and courts independent enough to try them.

[Roly Poly Oly-Garch]

I'm thinking go with what the court says...more speech, not less. Wanna get money out of politics? Make politics cheaper. Publicly finance elections. Limit per person donations. Lottery off campaign ad slots during the election season...enough so that even if a PAC or Super-Duper-PAC wants to buy ad time to guarantee their ads get shown, they'll be quite unlikely to stand out from the crowd. If the problem is that only the wealthy belong to the Country Club, the answer is not to restrict the amount of dues a member may pay, the answer is to give away a fuck-ton of free memberships. Let's reverse-gentrify the political process.

Remember, the public owns the air-waves. If a network wants to run a 24 hour partisan tug-fest disguised as journalism, let the public get 10 of every 60 minutes to respond to what the network is broadcasting. Do it lottery style. Set up remotes in different cities (so it's not all New Yorkers) and pick 5 names out of a hat, give them each 2 minutes. Set up an impartial grading system, to be displayed as a footer for each particular show. "Truthfulness - F" "Content - C-" "Logic - Il". Two half hour blocks of each news network's programming day set aside for a more detailed reporting of the grades given, along with a short informative segment on rhetorical devices and how to spot some bullshit. Corporate media can promote it's interests regardless of any campaign finance laws, but the first amendment doesn't grant it the right to do so inside an echo chamber.

And yes, as Cain said, start enforcing libel and slander laws--not just as it pertains to speech that defames individuals, but speech that defames facts. After all, if corporations are "legal people", why can't "Truth" be considered "a logical citizen"? Make the pundit in the bow-tie show where he found evidence of the "death panels" in ObamaCare he reported on. If not, he gets sued just as if he accused Romney of huffing freon with girl scouts. A PAC drops some bullshit about a candidate, candidate gets paid. If they drop some bullshit on an issue, public sues and guilty PAC gets to spend their funds taking out ad time to confess their lie and inform the people of the truth.

...and then there's the internet...

[Mesozoic Mister Nigel]

Ban political advertising, period? Sure, you have media people who have access to an audience, but there are existing measures in place to try to keep that in check. Less goddamn money in campaigning the better, IMO.

Define "Political advertising".

[Mesozoic Mister Nigel]

While the exact wording of the First Amendment does not specify to whom it applies:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is a proposed Constitutional amendment that would resolve this wiggliness regarding who, exactly, the Constitution protects. http://movetoamend.org/publications-talks/poclad-why-abolish-all-corporate-constitutional-rights

There is another proposed amendment, which has Obama's support, which would enable Congress to limit campaign contributions.

[Roly Poly Oly-Garch]

General request; can OPs please give a brief overview?

Anything that doesn't have the word 'Rudd' in it isn't getting news time over here ATM.

http://en.wikipedia.org/wiki/Citizens_United

Basically, a PAC made an anti-clinton video too close to the day of the election, violating a provision in the McCain–Feingold Act (which deals with campaign contributions).  That provision was overturned by the Supreme Court.  The implications of this are that corporations, nonprofit corporations, and unions can legally spend as much as they want, whenever they want, on political advertising; and so Super PACs were born.

So, money is speech, and is protected by the 1st amendment.

The Super PACs are pretty behemoth in their own right, but in reality they are little more than a shortcut to what could already be accomplished through clever exploitation of loopholes. Every state and McCain-Feingold, allow for contributions from one PAC to another PAC. It may be a bit of a pain in the ass, but without the Super PAC, getting around limits (where they exist), could simply be accomplished by going PAC to PAC to PAC. If a state had a $5000 limit from a corporation to a PAC, for instance, and the same for PAC to PAC contributions, to get a $20k donation, it would just take 4 PACs. Paper "people" are neat that way.

Many states have total contribution limits that cap the amount a person or entity can donate to PACs, Candidates and Other Political Organizations, in sum. This is really the closest the law can come to enacting an effective limit...and given how common sense this solution is, I think it's reasonable to question whether loopholes and exceptions left in legislation that otherwise purport to limit contributions weren't left in by design to favor one class over another. Not that I'd ever be so cynical as to question the pure altruistic motivations that inspired something like McCain-Feingold, or indeed, any other act of congress.

[Roly Poly Oly-Garch]

While the exact wording of the First Amendment does not specify to whom it applies:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is a proposed Constitutional amendment that would resolve this wiggliness regarding who, exactly, the Constitution protects. http://movetoamend.org/publications-talks/poclad-why-abolish-all-corporate-constitutional-rights

There is another proposed amendment, which has Obama's support, which would enable Congress to limit campaign contributions.

What grates is that the 14th, just as often cited in "Corporate Personhood" cases, does explicitly state who is a "person"...but that definition just kinda gets ignored, from time to time.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first amendment, as applied to corporations, is something that I think bears examination. The first includes the right of assembly and religion and petitioning the government, any and all of which are, at times, certainly applicable to the formation, purpose and functioning of a corporation. Freedoms of Speech and Press could rightfully follow from that.

The equation of money and speech is a bit wonky. But it is important to note that Citizen's United didn't find that limiting political contributions was an infringement on freedom of speech all on it's own, only that limiting corporate donations to an organization engaged in political speech, while allowing unlimited individual donations, was not a justified restriction on the corporation's engagement with that organization. Basically, it just didn't buy the government's case that the size of corporate coffers would place them in an unfair position which could well undermine the citizen's faith in democracy. In fact, the majority opinion actually suggested that corporate money in politics could strengthen citizen's faith in democracy...or humor, depending on your take:

The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.

The opinion compared the advantage of corporate coffers to that enjoyed by a rich individual in relation to a poor one. They cited another decision on McCain-Feingold that overturned the provision that increased donor limits for one candidate if their opponent exceeded a certain amount of out of pocket campaign expenditures. The finding in that case was that personal wealth is not a legitimate reason to apply the law unequally. This interpretation is tough to refute, but there's nothing in the decision to suggest that the issue couldn't be addressed with legislation alone.

First amendment corporate personhood, though, would probably need a constitutional amendment to address. I can think of a lot of reasons both for and against this--the chief reason *against*, for now, is that limiting the amount of money the Koch Brother's can throw into the fray would accomplish the end of limiting corporate money as well, but de-personifying corporations, ain't gonna do shit to check the Koch's. Spending five years or more to pursue a constitutional remedy while ignoring a legislative problem that could be fixed next month, smells a little shell-gamey to me. The chief reason *for*, is that paper people are terribly easy to conjure and when exploited properly a very useful tool for human people to get extra money/speech into the political process.

The 14th, OTOH, refers to "born" or "naturalized" persons, not "chartered" entities. It's well and truly bastardized when it is applied in any instance other than providing corporations protections equal to other, similarly chartered, corporations (insofar as the legal entity, to a certain extent, represents the interests of an assembly of citizens). Any references to corporate personhood in 14th amendment cases is, to my mind, just a big blatant "fuck you" from SCOTUS. Sure the amendment actually defines "person" so there is absolutely no guess work...but, then again...fuck you. Also, since section 2 of the 14th apportions congressional seats according to the number of "citizens" as defined in section 1, any of the number of decisions that have held corporate citizenship under the 14th, should mean that corporations count in the total population of a state. Defining a corporation as a citizen under one amendment and not another may have some validity, but changing it up in the same amendment is just more "poetry-magnet" jurisprudence. My least favorite kind.

[Triple Zero]

Looks more like it defines "citizen" in terms of "person". I don't see any definition of "person".