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Friday, January 22, 2010

Another big First Amendment moment from the Reagan-Bush people

The Supreme Court justices who like to tell you that the Constitution is all about "original intent" have now decided that freedom of speech is there to protect corporations. Not letting corporate America control public opinion, it seems, is itself a form of "thought control" that can't be tolerated. My goodness.

It's sort of like state sovereignty. It's a big deal, except when it meant that Bush wouldn't be President. Then it didn't mean diddly.

If you're disappointed in Obama these days, just remember that he's the difference between another 20 years of this, and another 40 years.

Comments (26)

Yup -- you nailed it. As wimpy, brought-to-heel and disappointing as Obama is, his best moment so far was appointing the Wise Latina. And, given the makeup of the Court, we need someone making those kind of picks for the next 3 spots just to stay even.

Yesterday's decision was just the final payoff for the long-term strategy implemented by Reagan and Bush I that first allowed their boys in black to appoint Jr. to the White House, whereupon he goes and appoints very young, very radical fascists whose view is so thoroughly corporate dominated that they find a 3-to-1 ratio of punitive to actual damages limit somewhere in the text of the Constitution but have no problems with a death penalty and presidential annulment of all laws restraining executive power.

The American Republic -- died December 2000 of judicial coup, buried beyond hope for resurrection January 2010, also at the hands of liars professing to hew to "original intent."

The idea that a'corporation' could be a 'person' , and therefor have rights is absurd !
NOW congress must get off the
dime and write critical new legislation. That means you ,
Blummy,Wu-zzy,Schaffy. Time to earn your paycheck [ and the Healthcare you get that I don't have ]




Thanks, Ron!

whereupon he goes and appoints very young, very radical fascists whose view is so thoroughly corporate dominated that they find a 3-to-1 ratio of punitive to actual damages limit somewhere in the text of the Constitution

I believe the first SCOTUS case to find a constitutional basis for a punitive damage ratio was BMW v. Gore (1996).

The dissents in that case were Ginsburg, Scalia, Thomas and Rehnquist.

The majority was Stevens, Breyer, Souter, Kennedy & O'Connor.

A split court, sure, but most of the conservatives did not find the basis for a punitive damages ratio in the constitution.

The whole system is whack, but there is something to be said for evening out the playing field and letting corporate America wage an ad campaign that has been largely influenced by the labor unions and PACs that act as shills for their affiliated cause / candidate.

What would be nice is some restriction on the accuracy or truthfulness of the advertisements, but that is a different goal that is probably even tougher to reach.


I think Dave meant WYDEN (R-NY).

Part of the argument supporting the majority decision is that corporate action is "people acting through corporations". This completely overlooks the fact that, at least where publicly held corporations are concerned, it's people (management) acting with OTHER PEOPLE"S MONEY (investors). Still, corporations have to have some first amendment protection. After all, some (most) of the press is corporate.

See, I dont get this. The individuals that own and/or work for corporations have their own rights as citizens. So why does a corporate entity need it too?

And George, as for presidents messing with laws, what about Obama recently saying its ok for the FBI to skirt privacy laws when trying to get phone records?

To paraphrase,

The law is just in that it allows the poor person as well as the corporation to spend millions in support of a political candidate.

So now we can have the Senator from Nike and the Senator from SEIU. Well except here in Oregon and Washington where we'll have the 4 Senators fro SEIU

Actually, only three. Senator Wyden got married and moved to New York a while back.

If its so wrong for Microsoft to buy a full page ad in the New York Times two weeks prior to an election urging a vote for candidate A, why is it ok for the New York Times Corporation to publish a long editorial in its newspaper two weeks before that same election urging a vote for candidate B?

Jon asks the same question I ask myself. Why should those who own and hold shares in corporations (individuals who already have rights) be able to exert twice the amount of influence through corporate entity might as a single individual?

At this point, the only way I see that this can be contained is to pass some sort of meaningful caps on donations and extend the definition of "donation" to support of any kind, whether it be monetary or editorial.

Even so, large multi-national corporations that control a myriad of businesses may argue that each business or corporation under their control be allowed to donate individually, resulting in a huge bloc donation under another name. Different approach, same result.

Corporations are not people and are not entitled to the same liberties and freedoms originally intended for individual citizens. I don't care what the warped, overweaning and deluded Supreme Court may say.

On another tangent, I'm really ticked off by the Oregonian's repeated use of an anti 66/67 wrap on its front page. It's not paid advertising; it's editorial opinion. I'm fine with a paper expressing its opinion on the editorial page, even though I may not agree with it. But this is over the top.

But then I guess most of the people impacted by potential service cuts, job loss or displacement are not advertising in the Oregonian.

Do we need any more evidence of the corporate domination of our government and our lives?

The problem is, we can't get rid of these people, they are like a virus that has attached itself to the cellular structure of our country and we have no way to fight this infectious virus.

Eventually the virus will wipe us all out if we can't figure out some way to stop it.

And screw the BOREGONIAN!

JOHN DEAN on this disaster of a decision.

The OEA and SUEI (Sue-yea)can buy the same Oregonian wrap as NO ON 66/67. With OEA's $2 Million contribution, they can easily do it-they just elected to send out expensive four-color mailers and run expensive TV ads that help remind voters that OEA stands for education in case voters have forgotten. That's their choice.

"On another tangent, I'm really ticked off by the Oregonian's repeated use of an anti 66/67 wrap on its front page. It's not paid advertising; it's editorial opinion."

Uhhh, it is paid advertising. I think the Zero got $44K from the No campaign.

And now they get some more moola from the Yes side. Campaigns are the only people keeping that rag afloat!

From the Oregonian:
Pro-tax group buys wrap-around newspaper ad

By Harry Esteve, The Oregonian
January 22, 2010, 5:50PM

Saturday's edition of The Oregonian will include another one of those front-page political wrap-around ads, but this one comes from supporters of the two tax increases on the ballot, Measures 66 and 67.

The "spadea," which cost the Vote Yes for Oregon campaign $20,000, serves as a counterpoint to similar newspaper ads put out by tax opponents, Oregonians Against Job-Killing Taxes. Much of the ad is devoted to knocking down information put out by the group, labeling their claims "false."

Kevin Looper, director of the Yes campaign, said his group originally proposed running a different version of the ad that also criticized the newspaper. After negotiations between Looper and the ad sales department, the ad was revised and accepted.

The only way to really prevent the full brunt of this thing from hitting us, is to pass a Constitutional amendment specifically aimed against Citizens United v FEC. I hear that Congress is thinking about passing some laws; but I suggest that these laws a) will themselves will be found "unconstitutional" or b) be meaningless. The bare fact is that Congress can't pass laws that are in opposition to a Constitutional right. On the other hand, I am optimistic about passing such an amendment. At minimum, this is an explosive political issue, if only our leadership will have the fortitude and good sense to seize on it. This ruling should be fought -- HARD. And the only way to fight the Supreme Court is by Constitutional amendment. Check out the links below addressing the possibility of such an effort. The first: is a Facebook page organized after the ruling; the second is a website organized by a well-known law professor at American:

Sam Smith's "Progressive Review" newsletter:


From the dissent [written by Justice Stevens]:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. . .

The Court's ruling threatens to undermine the integrity of elected institutions across the nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. . .The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress' most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well

The Framers took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even "the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,"given that "at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign."

President Roosevelt, in his 1905 annual message to Congress, declared: "'All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.'". . .

It is an interesting question "who" is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation's electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one's autonomy, dignity, or political equality has been impinged upon in the least. . .

When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders "'call the tune'" and a reduced "'willingness of voters to take part in democratic governance . . .'"

The majority's unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations' "war chests" and their special "advantages" in the legal realm. . .may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, "provides a simple way to channel rents to only those who have paid their dues, as it were.". . .

The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.


From a speech by San Smith at a US Capitol rally, 1999:

I have three objections to our current system of campaign financing.

The first is literary. Being a writer I try to show respect for words, to leave their meanings untwisted and unobscured.

This is alien to much of official Washington which daily engages in an activity well described by Edgar Alan Poe. Poe said, "By ringing small changes on the words leg-of-mutton and turnip. . . I could 'demonstrate' that a turnip was, is, and of right ought to be, a leg-of-mutton."

For example, for centuries ordinary people have known exactly what a bribe was. The Oxford English Dictionary described it in 1528 as meaning to "to influence corruptly, by a consideration." Another 16th century definition describes bribery as "a reward given to pervert the judgment or corrupt the conduct" of someone.

In more modern times, the Meat Inspection Act of 1917 prohibits giving "money or other thing of value, with intent to influence" to a government official. Simple and wise.

But that was before the lawyers and the politicians got around to rewriting the meaning of bribery. And so we came to a time not so many months ago when the Supreme Court actually ruled that a law prohibiting the giving of gifts to a public official "for or because of an official act" didn't mean anything unless you knew exactly what the official act was. In other words, bribery was only illegal if the bribee was dumb enough to give you a receipt.

The media has gone along with the scam, virtually dropping the word from its vocabulary in favor of phrases like "inappropriate gift," "the appearance of a conflict of interest," or the phrase which brings us here today: "campaign contribution."

Another example is the remarkable redefinition of money to mean speech. You can test this one out by making a deal with a prostitute and if a cop comes along, simply say, "Officer, I wasn't giving her money, I was just giving her a speech." If that doesn't work you can try giving more of that speech to the cop. Or try telling the IRS next April that "I have the right to remain silent." And so forth. I wouldn't advise it.

My second objection to our system of campaign financing is economic. It's just too damn expensive for the taxpayer. The real cost is not the campaign contributions themselves. The real cost is what is paid in return out of public funds.

A case in point: Public Campaign recently reported that in 1996, when Congress voted to lift the minimum wage 90 cents an hour, business interests extracted $21 billion in custom-designed tax benefits. These business interests gave only about $36 million in campaign contributions so they got out of the public treasury nearly 600 times what they put in. And you helped pay for it.

Looked at another way, that was enough money to give 11 million workers a 90 cent an hour wage increase for a whole year -- or, to be more 1990s about it, to give 21,000 CEOs a million dollar bonus.

This is repeated over and over. For example, the oil industry in one recent year gave $23 million in campaign contributions and got nearly $9 billion in tax breaks.

The bottom line is this: if you want to save public money, support public campaign financing.

My final objection is biologic. Elections are for and between human beings. How do you tell when you're dealing with a person? Well, they bleed, burp, wiggle their toes and have sex. They register for the draft. They register to vote. They watch MTV. They go to prison and they have babies and cancer. Eventually they die and are buried or cremated.

Now this may seem obvious to you, but there are tens of thousands of lawyers and judges and politicians who simply don't believe it. They will tell you that a corporation is a person, based on a corrupt Supreme Court interpretation of the 14th Amendment from back in the robber baron era of the late 19th century -- a time in many ways not unlike our own.

Before this ruling, everyone knew what a person was just as everyone knew what a bribe was. States regulated corporations because they were legal fictions lacking not only blood and bones, but conscience, morality, and free will. But then the leg of mutton became a turnip in the eyes of the law.

Corporations say they just want to be treated like people, but that's not true. Test it out. Try to exercise your free speech on the property of a corporation just like they exercise theirs in your election. You'll find out quickly who is more of a person. We can take care of this biologic problem by applying a simple literary solution: tell the truth. A corporation is not a person and should not be allowed to be called one under the law.

I close with this thought. The people who work in the building behind us have learned to count money ahead of votes. It is time to chase the money changers out of the temple. But how? After all, getting Congress to adopt publicly funded campaigns is like trying to get the Mafia to adopt the Ten Commandments as its mission statement. I would suggest that while fighting this difficult battle there is something we can do starting tomorrow. We can pull together every decent organization and individual in communities all over America -- the churches, activist organizations, social service groups, moral business people, concerned citizens -- and begin drafting a code of conduct for politicians. We do not have to wait for any legislature.

If we do this right, if we form true broad-based coalitions of decency, then the politicians will ignore us only at their peril.

At root, dear friends, our problem is that politicians have come to have more fear of their campaign contributors than they have of the voters. We have to teach politicians to be afraid of us again. And nothing will do it better than a coming together of a righteously outraged and unified constituency demanding an end to bribery of politicians, whether it occurs before, during, or after a campaign.

^^^ It is interesting that "bribery" by corporations is noted as a concern in that article. As opposed to the blatant bribery of several Senators in the health care legislation or the auto unions' demand for special treatment that got Obama's blessing?

blatant bribery of several Senators

I don't approve of these practices any more than you do, but I don't think it helps to characterize them as "bribery", since there's no direct benefit to the senator or union representative.

Allan L., your remark of "there's no direct benefit to the senator or union representative" is the kind of ignorance that the public isn't buying anymore. You may be right in a legal sense, but it isn't selling. There is a direct benefit when you are bought off and the peons know it. "Law" is becoming a joke to many.

As I take a cursory glance at the Supreme Court's decision, and then a hard look at the First Amendment, I developed a revelation:

The First Amendment is not about "the people's right to free speech". It is restricting the Government from impeding free speech.

In other words: It isn't granting a right specifically to "people" (as opposed to "corporations"/"businesses") but it is restricting the power of government to restrict free speech. The word "people" only comes into play in the phrase "or of the right of the people peacefully to assemble."

One can argue the original intent, but said argument can be flipped: did the Framers intend for the government to restrict business? I find nothing in the Constitution that addresses business, aside from Article I, Section 8: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" and in Article I, Section 9: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.". And neither of these clauses address the issue at hand; nor would seem to give the government power to restrict it.

Frankly, if we the people are so stupid to allow elections to be bought by businesses, I can't blame the government for that. We all have a responsibility to read through each referendum or initative thoroughly, reflect upon the choices both pro and con, and make a decision in our heart as to what we feel is the best choice. If I subjugate that decision to a business on my behalf - how is that the fault of a Supreme Court no matter its make up?

I see the oldest, least internet-savvy scion of the bunch wrote the dissent as if we still live in a dead-tree edition, mainstream media dominated world.

It is always dangerous when any politician or group of politicians decide what kinds of individual or group expression are permitted and what are not.

And as for the basic premise of this post, that corporations shouldn't have First Amendment rights, I kind of doubt that the people opposing the decision really want to see New York Times v Sullivan reversed (which by the way was decided when most of the majority were in grade school).

You all have a voice -- use it and then the chips will fall where they may.

I guess the part I don't get is how giving money to politicians is protected "speech," particularly when a fictional legal entity is doing it. As I say, the authors of the Bill of Rights didn't intend that. Their intent is important only when Tony Scalia feels like it, though.

I am kind of a first amendment radical, and I kinda figure that only lawyers and judges could find more than one meaning to "Congress shall make no law" that abridges the freedom of speech. It is an unhappy result but the only honest one.
Congress can, of course, tax corporations, limit many of their activities, and require them to make more of their activities public. It won't.
Public financing is, as mentioned above, the only real answer, and only a partial one.
Upset with what the court said ? Don't skip the Clarence Thomas opinion that it is unconstitutional to require public identification of corporations, or any donor or political commentator, because people might retaliate.
He suggests a right to anonymous speech. Yikes.

To GAS, with love...

Short, but sweet

The money line:

The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment.


As a lawyer/blogger, I get
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Bill Bryson - A Short History of Nearly Everything
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Stephen King - 11/22/63
Paul Goldstein - Errors and Omissions
Mark Twain - A Connecticut Yankee in King Arthur's Court
Steve Martin - Born Standing Up: A Comic's Life
Beverly Cleary - A Girl from Yamhill, a Memoir
Kent Haruf - Plainsong
Hope Larson - A Wrinkle in Time, the Graphic Novel
Rudyard Kipling - Kim
Peter Ames Carlin - Bruce
Fran Cannon Slayton - When the Whistle Blows
Neil Young - Waging Heavy Peace
Mark Bego - Aretha Franklin, the Queen of Soul (2012 ed.)
Jenny Lawson - Let's Pretend This Never Happened
J.D. Salinger - Franny and Zooey
Charles Dickens - A Christmas Carol
Timothy Egan - The Big Burn
Deborah Eisenberg - Transactions in a Foreign Currency
Kurt Vonnegut Jr. - Slaughterhouse Five
Kathryn Lance - Pandora's Genes
Cheryl Strayed - Wild
Fyodor Dostoyevsky - The Brothers Karamazov
Jack London - The House of Pride, and Other Tales of Hawaii
Jack Walker - The Extraordinary Rendition of Vincent Dellamaria
Colum McCann - Let the Great World Spin
Niccolò Machiavelli - The Prince
Harper Lee - To Kill a Mockingbird
Emma McLaughlin & Nicola Kraus - The Nanny Diaries
Brian Selznick - The Invention of Hugo Cabret
Sharon Creech - Walk Two Moons
Keith Richards - Life
F. Sionil Jose - Dusk
Natalie Babbitt - Tuck Everlasting
Justin Halpern - S#*t My Dad Says
Mark Herrmann - The Curmudgeon's Guide to Practicing Law
Barry Glassner - The Gospel of Food
Phil Stanford - The Peyton-Allan Files
Jesse Katz - The Opposite Field
Evelyn Waugh - Brideshead Revisited
J.K. Rowling - Harry Potter and the Sorcerer's Stone
David Sedaris - Holidays on Ice
Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 113
At this date last year: 155
Total run in 2016: 155
In 2015: 271
In 2014: 401
In 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269

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