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Wednesday, November 16, 2011

It isn't just Citizens United

Here's an interesting column that covers something we've been thinking about this week. There are several efforts under way to pass a constitutional amendment to overturn the Supreme Court's controversial Citizens United decision. That decision gave corporations "personhood" rights, and with them the right to spend all the money they wanted to influence elections and legislation under the First Amendment.

But just reversing that court ruling isn't going to knock big money out of the catbird seat in American politics. Businesses will stop using corporations to do their political bidding; they'll come up with some other structure that will get around the proposed constitutional amendment undoing Citizens United.

The real villain in the piece is much older than Citizens United -- it's Buckley v. Valeo, the Supreme Court's messy 1976 case that held that spending money on political causes was "speech" protected under the First Amendment. That's what puts big bucks in charge. The Court's reasoning makes sense in the abstract, but when you see how it plays out in practice -- the ugly scene we have today -- it seems a ripe target for reform.

Repealing Buckley would be a much trickier business, and it would have far graver implications for civil liberties than just getting rid of Citizens United. Oregon Senator Jeff Merkley and some allies have a proposed amendment on the table that they hope will get some traction. Unless you're happy with the current state of politics in this country, it's certainly worth thinking about. But on something like this, extreme caution is the watchword.

Comments (26)

I think First Nat'l Bank of Boston v. Bellotti would also be a case you'd want to put on the list to get rid of.

I'm pretty sure that personhood goes way back before Citizen's. That has been around 100+ years.

Not the part about being covered by the Bill of Rights.

The case you are looking for is

Santa Clara County v. Southern Pacific RR Co., 118 U.S. 394 (1886)

Much easier to deal with only the $$=speech issue than to back out the consequences of a case that's 130 years old.

If you're going to amend the Constitution, no court decision is "easier" to reverse than any other.

The corporate personhood complaints are a straw man. It refuses to recognize that the citizens of any state can choose to not grant the privilege of incorporation, period. The US Constitution does not command that a state must offer the privilege of incorporation.

Congress (or any state) can, consistent with all free speech protections, demand transparency by corporations as to whether the speech of foreigners is being routed through any private corporate entity. It just needs to be drafted narrowly so as not to restrict the speech of US citizens or US entities that otherwise comply with the demand for transparency. Congress can also demand that news organizations also reveal foreign ownership.

The legislation at issue in Citizens United was not narrowly tailored to address this foreign ownership issue. It resembled a labor/management agreement that ignored all other considerations.

Amending the US Constitution is one of the most difficult democratic achievements imaginable.

Ironically, big money interests wishing to maintain their stranglehold on what's left of our democracy would flood advertising markets to skew public opinion away from the idea.

Do Americans have the attention span required to see this through?

PDXnag -

But even if a state chose to not permit domestic incorporation, a corporation created in another state would have rights, under the equal protection clause of the 14th amendment, to operate - in all the full richness of that term - in a state which chose to not offer corporate status.

They say that the rise of 'big unions' was to counter the influence of 'big business'. Could it be that big lobbying is to counter the pressures of big government? One of our congressional leaders was asked if there were any part of life in America in which the Constitution prohibited regulation by congress. Blank stare.

Did you know that there is a lobbying group for shop towels? Shop towels!! Why? Because congress regulates them.

A lot of this has its roots in the 1942 decision in which the supremes decided that a farmer in Ohio should be fined for growing more wheat than the government quota allowed, because, even if the wheat never left his farm and was eaten by his family, it was identical to wheat that other farmers shipped across state lines, therefore subject to the commerce clause.

Want to reign in lobbyists? Reign in Congress.

You might want to start by reining in your spelling errors.

Reign is spelled correctly, it is just the wrong word. This is an error of literacy not spelling. Your spell checker would not catch this. We should however rein in the reign of cold rain in Portland!

If I person means "rein" but types "reign," to me that's a spelling error. In this case, it's not clear whether the reader meant "to restrain as if by holding reins," or rather thought the word had something to do with ruling.

What is the moral justification for preventing an entity subject to regulation from spending money to defend against those regulations?

I suspect the real problem here is that corporations are defending themselves against the green zealots and the unions. Absent the ability to defend themselves, we can expect more corporations and jobs to leave the country. And more bailouts, like GM & Chrysler to try to keep them solvent.

As was said above, the real problem is too many regulations and micro managing of business by government. For instance, why is it an employer’s responsibility to check immigration status of a hire - the Feds get all the info they need to spot the illegals?


Dang! Sloppy as charged. Rein is the correct word.

The real devil is the entire concept of finance capital. We have created an over-lord of bankers that create money from nothing and charge you interest to use it.

What you see now is the total collapse of that system, as that system is mathematically impossible to sustain.

Since the bankers know the game is up, they are stealing everything not nailed down.

They recently have begun stealing money from people's personal accounts:

Courtesy of the New York Times:

"Federal regulators have discovered that hundreds of millions of dollars in customer money have gone missing from MF Global in recent days, prompting an investigation into the company’s operations as it filed for bankruptcy on Monday, according to several people briefed on the matter."

"The revelation of the missing money scuttled an 11th hour deal for MF Global to sell a major part of itself to a rival brokerage firm. MF Global, the powerhouse commodities brokerage run by Jon S. Corzine, had staked its survival on completing the deal."

MF Global is a fascinating issue.

Can anyone explain in small words why, with $ 620 million in client assets gone, Jon Corzine is not in jail right now?

Does Corzine's continuing freedom have something to do with his having been Majority Whip when he was a Senator from New Jersey? Or something to do with his having for years been the head of the Democratic Senate Campaign Finance Committee, shaking the bushes for his fellow Democratic Senators? Or something to do with his having previously headed up Goldman Sachs? Or something to do with his having been governor of New Jersey? Or something to do with him being a guest of the Obama's at the White House after MG collapsed?

I'm genuinely confused and really would like an explanation as to why Corzine is not in jail.

Cut the spending!

"What is the moral justification for preventing an entity subject to regulation from spending money (to defend against those regulations)?"
How about this: 'Investing' spending for the manufacture and marketing of poison kills people wholesale. Which is immoral. And we are morally justified to STOP it.

Why has the 'freedom of speechdollars' been prohibited for cigarette corporations which sell more cigarettes and make more profit when&where they can buy TV advertising and sway consumers' spending choices. Since, in fact, cigarette corporations are prohibited from buying TV and radio broadcast time. Because their 'product' is poison and is addiction.

Ban politicians from buying broadcast commercial time. Because their hatetalk negative-advertising 'product' is poison and is addiction.

Cut the political spending half of 'campaign finance'. All of it, get it off the air, from fascist rightwingers to socialist leftwingers across the board, off the table. In essence, a uniform ban on all political ad broadcasting is equinimical or bipartisan. In effect, it only stops all the rightwing political spending since the leftwing spends nothing to TV-advertise socialism.

Let politics use Print media only -- graphic arts, billboards, lawn signs, bumperstickers, decals, junk mail, newspaper columns and op-eds, published 'position papers' and public speeches, and the internet, just. like. immoral. cigarette. corporation. advertising. Broadcast political ads, in the dynamic sound effects and visual effects they inject into voters' brains, are poison causing mental illness, moral sickness, and are addiction by hate-hot adrenaline doses.

When politicians are BANned from broadcast advertising, I hardly care where they get their campaign income. Regulation prevents spending it.

(Hey, show of hands who has missed cigarette ads on TV all these years? P.S. it was not banned by amending the Constitution.
Who here believes a 'moral justification' for cigarette corporations to buy any speech they choose to broadcast and to maximize sales and profits? Anyone? anyone? Well, same thing:
Broadcast political ads are sickening our civic well-being.
Negative advertising by hatetalk is immoral and reprehensive.)

Nonny, kind of like a murder where there's a body and suspects, but no evidence yet to directly tie a particular suspect to the crime. In time they'll be able to trace transactions and reconstruct how and when the money disappeared, indictments to follow.

The most interesting thing about wickard is that it was so wrongly decided on a much more expansive basis than was necessary. The wikipedia writeup confirms what I had understood, which was that the guy was participating in the federal crop supports program. In other words, he wanted the money, but not the strings that come with.

Instead of inventing this unlimited commerce clause power, the court should have just said that he was trying to have it both ways, and that he could either take program money and not grow non-program wheat, or grow all the non-program wheat he likes, but with no crop support dollars in his pocket.

Wickard should have been reversed years ago. It might final get blown up next June in the Obamacare opinion.

The Constitution guarantees protections to property, and we must make that promise good -- But it does not give the right of suffrage to any corporation. The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man's making shall be the servant and not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they have themselves called into being. There can be no effective control of corporations while their political activity remains. To put an end to it will be neither a short nor an easy task, but it can be done.

Theodore Roosevelt, "The New Nationalism" speech
John Brown Celebration, Osawatomie, Kansas
August 31, 1910

Full speech at

I'll be sending Karlock my copy of Atlas Shrugged.

If Congress had not passed a law abridging the freedom of speech in the first place, there would be more room for productive discussion on this page.
How come there is so little talk about the danger of rewriting the first amendment? Is it really likely that free speech and forms of speech would expand once the mean, the ignorant and the profit-driven get a chance to make some changes. The freedom to say what you think would likely be limited to not saying bad things about capitalism, or capitalists; no insulting god or any Christian religion; no speech concerning gender issues; no flag disrespect, no gay talk in public? When you think about the dangers you might conclude the Founders got it right the first time.

Concordbridge is right. The problem is not so much monied interests looking to use their money to gain influence --they'll always be out there-- but rather corrupt elected officials who want to take the money. Make the penalties on them stiff enough and they'll knock it off.

Notice also how it's always the monied interests we don't like we want to reign rein rain in. Banks for some. Generally, big corporations for others. Big Pharm. As for me, I don't like the labor unions, public employees, or the environmentalists. Funny how that works.

Newleaf -

Strangely enough, Bernie Madoff's "accounting" and various in house paper trails are still being traced and unwound by the bankruptcy trustee.

Madoff was arrested on a sworn complaint based upon a joint FBI / SEC affidavit, - no indictment - and jailed in SDNY -- with no bail as a flight risk --weeks before he pled guilty.

So again, my question - whats the difference between Madoff and Corzine? MG collapsed more than a month ago. Why isn't Cprzine in jail?

Same federal judicial district; same US Attorney, Preet Bharara. Similar regulators, i.e Commodity Futures Trading Commission (CFTC) for Corzine, SEC for Madoff, and FBI re mail and wire fraud for both.

Why is Jon Corzine running around free?

Surely it can't be that he's too well connected politically to the Democratic establishment to fail?

Can it?


Tenskwatawa: "What is the moral justification for preventing an entity subject to regulation from spending money (to defend against those regulations)?"
How about this: 'Investing' spending for the manufacture and marketing of poison kills people wholesale. Which is immoral. And we are morally justified to STOP it.
JK: Do you advocate shutting off all free speech because ONE industry lied?
* How about shutting down all politician’s speech because the routinely lie?
* How about shutting off the speech of the thousands of corporations that HAVE NOT made dangerous products?
* How about shutting off the speech of the thousands of corporations that HAVE NOT made dangerous products, but are falsely accused?

Tenskwatawa: Cut the political spending half of 'campaign finance'. All of it, get it off the air, from fascist rightwingers to socialist leftwingers across the board, off the table. In essence, a uniform ban on all political ad broadcasting is equinimical or bipartisan.
JK: I see, you want getting elected once to become a lifetime carrier (it takes a lot of money and effort to overcome all the free advertising the incumbents get.)

Tenskwatawa: In effect, it only stops all the rightwing political spending since the leftwing spends nothing to TV-advertise socialism.
JK: I get it - you want to use the power of government to shut off you opponent’s ability to be heard.



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