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Since when do we limit our critiques to things we could do better ourselves?

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You are here: Home / Organizing & Resistance / #OWS / “A permanent IED in the laws regarding campaign finance”

“A permanent IED in the laws regarding campaign finance”

by Anne Laurie|  November 3, 20114:06 pm| 70 Comments

This post is in: #OWS, Activist Judges!, C.R.E.A.M., Our Failed Political Establishment

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I thought I had a pretty fair grasp of the history of America’s first Gilded Age (due to a life-long fondness for Mark Twain, Finley Peter Dunne, and Teddy Roosevelt), but Charlie Pierce has taught me something I did not know in his post on the proposed anti-Citizens-United amendment:

Left to work its dark magic, the Citizens United decision will forever deform American politics in such a way that a corporate oligarchy will entrench itself in the democratic institutions beyond the capability of anyone ever to dig it out again. Just yesterday, for example, Citizens itself announced that it’s in for a six-figure ad buy to try and rescue Ohio governor John Kasich’s anti-union legislation in Ohio. But the day before that, Senator Tom Udall introduced a Constitutional amendment to more or less overturn the damn thing, and, really, there is is no other remedy. Anything short of this won’t do, because Citizens United contains within it the judicial wherewithal by which any simple legislative attempt to undo it will be ruled unconstitutional based on the theory behind Citizens United. The Roberts Court wanted to fashion a permanent IED in the laws regarding campaign finance, and that’s pretty much what they did…
__
Personally, I would have liked to have seen an even tougher amendment (in for a dime, in for a SuperPAC!) that took head-on the ridiculous legal doctrines by which corporations are considered people, and money is considered speech. The former is a particularly spectacular absurdity, the preposterous history of which is laid out in detail by historian Jack Beatty in his essential The Age of Betrayal. It arises from an 1886 case called Santa Clara County vs. Southern Pacific Railroad. (The fact that this is a episode out of our previous Gilded Age should scare you more than it tickles your sense of irony.) The case involved the taxation by the county of properties belonging to various railroads including, obviously, the Southern Pacific. At this time in history, of course, the government and all its branches were lousy with the influence of the railroads. Before the Supreme Court, the railroads advanced a pet theory — rooted in old English common law that called corporations “artificial persons” — that argued that, because they were the creations of their stockholders, corporations should be considered persons under the newly passed 14th Amendment, which had been enacted to insure the rights of newly freed slaves, but what the hell. Because corporations had these rights, so the theory went, any attempt by, say, California, to tax them denied them the rights of equal protection under the law promised by the 14th Amendment…

Click the link to discover how a couple of extremely interested parties by the names of Morrison Waite and J.C. Bancroft Davis turned the Fourteenth Amendment into every bankster’s favorite tool. (I haven’t read The Age of Betrayal, but it looks like I’m gonna have to get a copy.)

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70Comments

  1. 1.

    Villago Delenda Est

    November 3, 2011 at 4:11 pm

    The distressing thing is that there still will be a way out.

    However, it will be one fraught with danger, and there’s no way of knowing what we’ll wind up with.

    It was used in 1789 and 1917.

    Be afraid.

  2. 2.

    Baud

    November 3, 2011 at 4:12 pm

    And that is how corporate personhood became enshrined in American law.

    I’ve heard this story before, but I think it’s a stretch to believe that corporate personhood concept would not have come into existence otherwise.

  3. 3.

    eric

    November 3, 2011 at 4:14 pm

    so far OT that it hurts, but from Pierce today: “I mean, with all due respect to E. J. Dionne, the only difference between the “old” South Carolina conservatives and the “new” South Carolina conservatives is that Jim DeMint isn’t knocking up black women the way that Strom Thurmond used to.”

    sorry for this interruption, I had to share.

  4. 4.

    burnspbesq

    November 3, 2011 at 4:16 pm

    At least Pierce acknowledges that corporations were considered juridical persons at common law. But the remainder of the Santa Clara fallacy apparently remains intact in his head. And it is a fallacy, as anyone who has spent 20 minutes looking at the legislative history of the Fouteenth Amendment would know.

    Santa Clara was a poorly constructed opinion, but there is no reasoned basis for arguing that it was wrongly decided.

  5. 5.

    geg6

    November 3, 2011 at 4:18 pm

    Completely OT, but since you mentioned Mr. Clemens, Anne Laurie…

    I finally got my hands on a copy of the “Autobiography of Mark Twain: Volume I.”

    I am soooooooooo excited.

  6. 6.

    SectarianSofa

    November 3, 2011 at 4:22 pm

    Apropos of not this especially, but this also, all the front pagers have been posting great stuff (I swear it seems like everyone has been kicking all on cylinders since some of us got pissy at Anne for getting pissy at ABL on the front page). And maybe since the Cole rant about post categories.

  7. 7.

    cat48

    November 3, 2011 at 4:23 pm

    That Hedge Fund owner of American Elects filed to get on the presidential ballot today, but refuses to disclose any of their fundraising.

    They have no Candidate yet.

  8. 8.

    burnspbesq

    November 3, 2011 at 4:25 pm

    @Baud:

    If you had suggested to any delegate to the Constitutional,Convention of 1787 that corporations weren’t juridical persons, they would have laughed at you. It’s a fair bet that every one of them was intimately familiar with Blackstone’s Commentaries on the Laws of England, which devotes an entire chapter to the origins and evolution of the corporation and its legal status.

  9. 9.

    Dennis SGMM

    November 3, 2011 at 4:25 pm

    OT.
    Just dropped in to ask if Obama’s vote against Palestine’s request for membership in UNESCO negated the content of his Cairo speech. Palestine was granted the UNESCO membership. Anyone who declares that Obama is as much a tool of Israel as every one of his predecessors in office is clearly wrong and General Stuck, among others, will be her shortly to point out the fallacious nature of that claim.

    Six Two and Even, Over and Out.

  10. 10.

    MBunge

    November 3, 2011 at 4:29 pm

    “Citizens United decision will forever deform American politics in such a way that a corporate oligarchy will entrench itself in the democratic institutions beyond the capability of anyone ever to dig it out again.”

    Oh, it’ll be cut out. The people doing it will just be using a chainsaw instead of a pocket knife.

    Mike

  11. 11.

    Baud

    November 3, 2011 at 4:29 pm

    @burnspbesq: My point is that the Court in the late 1800’s would likely have eventually ruled in favor of corporate personhood, notwithstanding Blackstone or the particular actions of Morrison Waite and J.C. Bancroft Davis.

    ETA: Misread your initial comment. My response probably makes no sense now. I’ll leave it up as a symbol of my shame.

  12. 12.

    burnspbesq

    November 3, 2011 at 4:29 pm

    For those who think corporations shouldn’t be legal persons, the following hypothetical.

    You are grievously injured, and permanently disabled, by a defective product that was manufactured, distributed, and sold by corporations. If corporations are not legal persons, who do you sue?

  13. 13.

    Calouste

    November 3, 2011 at 4:30 pm

    An IED is an Improvized Explosive Device. I don’t think there was much improvization about what the Roberts court did.

  14. 14.

    geg6

    November 3, 2011 at 4:31 pm

    @Dennis SGMM:

    I don’t know that it negated the content of the speech (I admit that I didn’t pay minutely close attention to the content). However, I think many of his actions in regard to the ME and, especially, the Arab Spring don’t make him some sort of tool of Israel.

    I am, however, supremely disappointed that the US did not vote to admit Palestine. I, personally, would cut ties to Israel because I think it is as disgusting in its actions as anything, for instance, that is happening in Syria. But then, I am also realistic enough to know that a shitstorm would hit with heavy force if Obama listened to me on this.

  15. 15.

    burnspbesq

    November 3, 2011 at 4:32 pm

    @Baud:

    I’m not sure that the distinction between “they would have gotten there eventually” and “that had been the law for centuries” is worth arguing over.

  16. 16.

    geg6

    November 3, 2011 at 4:32 pm

    @burnspbesq:

    The CEO, CFO, and board members of said corporation.

  17. 17.

    The Moar You Know

    November 3, 2011 at 4:34 pm

    Just dropped in to ask if Obama’s vote against Palestine’s request for membership in UNESCO negated the content of his Cairo speech.

    @Dennis SGMM: That’s a “roger”.

    Anyone who declares that Obama is as much a tool of Israel as every one of his predecessors in office is clearly wrong and General Stuck, among others, will be her shortly to point out the fallacious nature of that claim.

    Fuck, I’ll declare it until the cows come home. So far, Obama is better than the alternative, but damn, for once I’d like to see someone tell Israel that they can pay for their own damn guns and ammo. Obviously won’t happen.

  18. 18.

    Baud

    November 3, 2011 at 4:34 pm

    @burnspbesq: I agree. See my mea culpa above at #11.

  19. 19.

    Calouste

    November 3, 2011 at 4:35 pm

    @burnspbesq:

    A corporation can be a legal entity without being a legal person. I.e. there is no need to give corporations all the benefits that should only apply to actual living people, like freedom of speech, or say, the right to bear arms.

  20. 20.

    srv

    November 3, 2011 at 4:37 pm

    Wouldn’t it be easier to repeal the 14th?

  21. 21.

    Jenny

    November 3, 2011 at 4:38 pm

    Wait a minute, I thought Obama was a Moooslim, now you’re telling me he’s a Joooo!

  22. 22.

    Baud

    November 3, 2011 at 4:40 pm

    @srv: Lot’s of good stuff in the 14th for us biopeeps. Repeal is not good.

  23. 23.

    Thoughtful Black Co-Citizen

    November 3, 2011 at 4:40 pm

    @burnspbesq: If the GOP has its way, no one, because Frivolous Lawsuits!

  24. 24.

    Mnemosyne

    November 3, 2011 at 4:41 pm

    @Calouste:

    That’s the question I’ve had since Citizens United — if corporations are now legal persons with free speech rights under the First Amendment, do they now get all of the other rights, too? Can they claim to be religious groups? If the corporation kills people, can we put it on trial and put it in jail? Can, say, JP Morgan issue sidearms to all of its employees because they’re just exercising their Second Amendment rights?

  25. 25.

    Calouste

    November 3, 2011 at 4:41 pm

    I don’t know if this particular bit of Republican stupidity has been mentioned yet:

    Wisconsin State Assembly Votes For Concealed Guns On The Floor, And In Public Gallery

    Democrats attempted to mount some opposition to the policy, by contrasting it with another policy — that citizens are not allowed to bring cameras or protest signs into the gallery. The Dems moved to allow signs and cameras, in addition to guns, but this was voted down by the GOP members.

  26. 26.

    Walker

    November 3, 2011 at 4:44 pm

    I have long believed that we need a legal status called “simulacrum”. This is an independent entity which is directed (but not explicitly controlled) by another actor (a human). For example, robots that have some degree of self-determination but are not truly sentient.

    That is the appropriate legal category of a corporation – the same as a robot.

  27. 27.

    David Koch

    November 3, 2011 at 4:45 pm

    @Jenny: Obama is neither a Mooooslim nor a Jooooo, rather he’s a Homophobe who was born in Kenyan!!

    And his father was in reality, Adolph Hitler. That’s where he got his oratory skills.

  28. 28.

    jl

    November 3, 2011 at 4:46 pm

    @Calouste: I agree. Is burnspbesq saying that in English common law, the corporation had all the rights and privileges of person even though it was an ‘artificial person’ legally?

    The corporation needs to be a person in some sense, otherwise it is hard to see how things like limited liability for corporate shareholders could be implemented, while still holding the corporation responsible for damages it causes.

    But even under an extreme corporate personhood regime, such as the US, we do not let corporations become citizens of any jurisdiction and vote in elections. Or at least not yet.

    So, there are obviously degrees of personhood. In the US, they just have gotten too many damn degrees for the country’s good.

    If this makes no sense, well, IANAL, and would request the lawyers explain the issues in more detail.

  29. 29.

    geg6

    November 3, 2011 at 5:01 pm

    @jl:

    s burnspbesq saying that in English common law, the corporation had all the rights and privileges of person even though it was an ‘artificial person’ legally?

    If he is saying that, he’s wrong.

  30. 30.

    wrb

    November 3, 2011 at 5:03 pm

    I wish the US would cut ties with Israel.

    But until a candidate can win the presidency without Florida and NY, there is no point in criticizing a president for not doing it.

    Jewish voters control our Israel policy, Cuban Americans our Cubs policy. It is how the Electoral College works.

    A concentration of voters in a swing state who will switch their votes away from a candidate who doesn’t back their preferred policy controls the nation as to that policy.

  31. 31.

    Roy G.

    November 3, 2011 at 5:03 pm

    If corporations are really people, then why isn’t there a death sentence for corporations that commit capital crimes?

  32. 32.

    Roger Moore

    November 3, 2011 at 5:04 pm

    @Calouste:
    There are real dangers to denying corporations freedom of speech and the press. If you do, you’re giving the government the power to censor any media company organized as a corporation. I suppose that you could re-organize every media company as a partnership, but that would leave all media companies specially vulnerable in a way that other companies that could organize as corporations weren’t.

  33. 33.

    Alan

    November 3, 2011 at 5:08 pm

    @Mnemosyne:

    Can they claim to be religious groups?

    Yes. http://en.wikipedia.org/wiki/Religious_corporation

    If the corporation kills people, can we put it on trial and put it in jail?

    They can put the corporation on trial and take its assets as fines or civil damages. To see people in jail, they’d have to go after the people individually, obviously.

    Can, say, JP Morgan issue sidearms to all of its employees because they’re just exercising their Second Amendment rights?

    Well, assuming most local laws restricting personal gun possession are not valid anymore, they probably could. I think in this case, it wouldn’t be the corporation claiming second amendment rights, rather the employees would be claiming those rights. I suppose an interesting question would be if a corporation tried to install gun turrets around its headquarters and claimed second amendment rights. I’m not sure about that one. It seems like that might be going too far for the second amendment.

    I think that liberals who are vigorously against organized entities having constitutional rights have to explain why their position does not mean that the FBI can decide to raid the offices of the ACLU and take a look around whenever it wants.

  34. 34.

    MikeJ

    November 3, 2011 at 5:09 pm

    @wrb:

    Jewish voters control our Israel policy, Cuban Americans our Cubs policy.

    What does this have to do with Theo Epstein?

  35. 35.

    aimai

    November 3, 2011 at 5:09 pm

    Jack Beatty also wrote a fantastic book about Mayor Curley (not the three stooges guy but the great Boston Irish Mayor). http://www.amazon.com/Rascal-King-Michael-Curley-1874-1958/dp/0306810026
    Its one of the great biographies–right up there with Henri Troyat’s Tolstoy.

    aimai

  36. 36.

    Calouste

    November 3, 2011 at 5:14 pm

    @Roger Moore:

    Most Western European countries don’t have absolute freedom of speech and the press, specially not for corporations. The Dutch constitution for example explicitly excludes commercial advertizing from freedom of speech. And I would say that they are a lot less in danger of becoming an authoritarian hellhole than the US is.

  37. 37.

    Ken

    November 3, 2011 at 5:17 pm

    @burnspbesq: I would sue the corporation, of course. In your hypothetical world where corporations are not legal persons, there would still have to be laws that govern them – they cannot exist without laws for incorporation, at the least. Those laws could certainly include both civil and criminal procedures to be used when one or both parties is a corporation.

    I realize this would be a greater burden on the legislature, but their laziness isn’t really an excuse. Besides, they’re perfectly happy to write in special rules for corporate persons versus humans – look at the corporate income tax.

  38. 38.

    mrmike

    November 3, 2011 at 5:24 pm

    Everyone side-steps the one right that the Constitution doesn’t explicitly grant that’s in play here. The right to vote. How long until someone wants IBM to have a lever to pull?

  39. 39.

    Chuck Butcher

    November 3, 2011 at 5:29 pm

    @mrmike:

    How long until someone wants IBM to have a lever to pull

    That one “vote” would be so pointless next to the swat they already have…

  40. 40.

    Alan

    November 3, 2011 at 5:31 pm

    @mrmike: I don’t think any corporation would have a reasonable argument that they should be allowed to vote. All the directors, officers, employees, and shareholders can vote assuming they are eligible to vote in the US. There’s no good reason why they should be able to exercise that right as a corporation as there is for them to exercise rights to speech and 4th amendment rights.

  41. 41.

    gene108

    November 3, 2011 at 5:37 pm

    @burnspbesq:

    You are grievously injured, and permanently disabled, by a defective product that was manufactured, distributed, and sold by corporations. If corporations are not legal persons, who do you sue?

    I think the issue is at what points do we decide corporations are not people and though they need to have some legal rights granted to them by law, they do not get to have the same rights as flesh and blood humans.

    For example, humans do not exist in perpetuity, whereas corporations will exist as long as they are able to continue as a going concern.

    I think the whole “corporations are people” issue seems to give entities that exist, only by an act of law, some extra perks humans are not entitled to and that gets people miffed.

    I think the Roberts Court has extended the interpretation of corporations as people beyond anything reasonable and gives them extra benefits of people, without the downside.

    For example, if I produced a medicine and sold it to you and you had serious, debilitating, side-effects, I’d stand a good chance of going to jail.

    Merck sold a pain medications with many, many bad side-effects that hurt a lot of people. Merck isn’t going to jail.

    There are more things that are probably floating around that annoy people, with regards to “corporations are people”, too.

    That’s just one example off the top of my head.

    EDIT: The Merck not going to jail thing isn’t from the Roberts Court, hope it isn’t misconstrued. Just an example of where corporations and humans differ.

  42. 42.

    Jenny

    November 3, 2011 at 5:39 pm

    @MikeJ: Elizabeth Warren is a secret Yankee fan.

  43. 43.

    TheStone

    November 3, 2011 at 5:46 pm

    I highly recommend (in Grey Poupon voice) Age of Betrayal. Beatty does a wonderful job of pulling together some disparate, but related, threads and makes quite a nice sweater, er book, out of them.

  44. 44.

    j low

    November 3, 2011 at 5:48 pm

    @gene108:

    For example, humans do not exist in perpetuity, whereas corporations will exist as long as they are able to continue as a going concern.

    Exactly. Corporations are immortals, and we mortals belong supine at their feet. There can be only one!

  45. 45.

    Alan

    November 3, 2011 at 5:53 pm

    @gene108:

    Merck sold a pain medications with many, many bad side-effects that hurt a lot of people. Merck isn’t going to jail.

    Well the officers or employees could. The fact that they might not have faced criminal liability doesn’t have to do with corporate personhood.

  46. 46.

    Schrodinger's Dog

    November 3, 2011 at 5:53 pm

    …that called corporations “artificial persons”

    Am I the only person who immediately thought of Lance Henriksen’s character in Aliens?

  47. 47.

    David Koch

    November 3, 2011 at 6:03 pm

    Proof Obama is a member of the tribe.

    http://www.sanfranciscosentinel.com/wp-content/uploads/2011/09/obama-sep-19-2.bmp

  48. 48.

    Mnemosyne

    November 3, 2011 at 6:18 pm

    @Alan:

    They can put the corporation on trial and take its assets as fines or civil damages. To see people in jail, they’d have to go after the people individually, obviously.

    Why “obviously”? If a corporation is a legal person with the same free speech rights as a regular citizen, why is there no provision to put the corporation into jail (ie force it to cease business for the length of its sentence)?

    As gene108 pointed out, the problem we have is that corporations seem to receive the rights that are most convenient for them to have with none of the penalties that the rest of us would face if we committed the same crimes they did. Rights without responsibilities is a completely untenable way to run a society, especially when some get more rights and fewer responsibilities than the rest of us.

    I think that liberals who are vigorously against organized entities having constitutional rights have to explain why their position does not mean that the FBI can decide to raid the offices of the ACLU and take a look around whenever it wants.

    Interestingly, if the ACLU wants to anonymously donate money to a political campaign, they’re not permitted to, unlike, say, Exxon. IIRC, the ACLU is not allowed to support specific political candidates at all.

    So, again, you’re championing a position where you seem to think it’s only natural for certain organized entities (like Exxon) to have more free speech rights than other organized entities (like the ACLU) and any attempt to rein those rights in is somehow unfair.

  49. 49.

    singfoom

    November 3, 2011 at 6:30 pm

    I’m fine with corporations being legal entities and even having some rights, but I think we need a constitutional amendment to specifically outlaw campaign donations other from ACTUAL living breathing human beings across the board.

    Or campaigning ala third party ads. There is no reason why we need to have corporate money in our political system at all.

    Those people who comprise the corporation can do it themselves, no one’s free speech rights would be hindered.

  50. 50.

    Steve

    November 3, 2011 at 6:41 pm

    @Roger Moore: Justice Rehnquist had a very common-sense dissent (I believe the case was Pacific Gas & Electric) in which he said look, everyone knows the difference between business corporations and media corporations, and there is no reason to insist that government treat them exactly the same. If even Justice Rehnquist got it…

    By the way, is there any chance we could stop saying that money is speech? The Supreme Court didn’t say that, and this isn’t merely a pedantic point. If money were speech, then all limits on campaign contributions would be illegal. Maybe that day will come but it hasn’t yet.

    Unlike donations, independent expenditures aren’t just “spending money,” they are a combination of money and speech. It costs money to run ads, but the content of those ads is classic political speech. Citizens United wanted to produce and distribute a movie about Hillary Clinton. More money is involved, but conceptually it’s not that much different from John Cole wanting to run a pro-Obama blog.

  51. 51.

    Alan

    November 3, 2011 at 7:50 pm

    @Mnemosyne:

    Why “obviously”? If a corporation is a legal person with the same free speech rights as a regular citizen, why is there no provision to put the corporation into jail (ie force it to cease business for the length of its sentence)?

    Well, in New York City at least, I know that businesses found to be in violation of the law can get padlocked up until they are in compliance. They can also permanently lose their licenses to do business. As for corporations in general, if the fine/damages is large enough it would have the effect of forcing the corporation into bankruptcy. In general, though I don’t think a court would be too inclined to shut down businesses given the effect on the economy. If the wrongdoing is limited to certain actors, the court can discipline those individuals and allow the corporation to continue operating. This seems ok to me.

    Interestingly, if the ACLU wants to anonymously donate money to a political campaign, they’re not permitted to, unlike, say, Exxon. IIRC, the ACLU is not allowed to support specific political candidates at all. So, again, you’re championing a position where you seem to think it’s only natural for certain organized entities (like Exxon) to have more free speech rights than other organized entities (like the ACLU) and any attempt to rein those rights in is somehow unfair.

    That’s because the ACLU is a nonprofit corporation which gives it tax exempt treatment. If it wanted to pay taxes like Exxon, it could have those same rights.

  52. 52.

    NobodySpecial

    November 3, 2011 at 7:50 pm

    I love watching the lawyers in the house turn their supposed Democratic tendencies on their heads and inside out trying to continue to justify an extralegal insert into a decision that gives a business all the rights of a person with none of the responsibilities.

  53. 53.

    harlana

    November 3, 2011 at 7:53 pm

    A CLERICAL ERROR??

  54. 54.

    Glen Tomkins

    November 3, 2011 at 7:54 pm

    Initiation

    Corporations won’t be taken seriously as people in this country until Texas executes one.

  55. 55.

    burnspbesq

    November 3, 2011 at 7:59 pm

    @geg6:

    The CEO, CFO, and board members of said corporation.

    So, somewhere between 11 and 15 separate actions, probably in at least five different jurisdictions, against high-income and high-net-worth individuals who will have spent a lot money on legal advice about how to get their assets into places where you can’t get at them if you win.

    That’s better than the current state of affairs? How so?

  56. 56.

    burnspbesq

    November 3, 2011 at 8:07 pm

    @NobodySpecial:

    extralegal insert

    Say what, now? ‘Splain, please.

  57. 57.

    Steve

    November 3, 2011 at 8:12 pm

    @burnspbesq: You know, if you’re going to fuck around with people who don’t have a law degree, you could at least play fair. Under current law, when you aren’t able to sue the company that wronged you (because they’re bankrupt, or whatever), do you have to bring 11 to 15 separate actions in at least five different jurisdictions? Of course not. You sue them all in one action wherever the company is located, because they’re all subject to jurisdiction there.

    This is all a moot point, because nobody is saying we should get rid of the corporate form, just that they don’t think corporations should have constitutional rights to the same extent as people. But still, be nice.

  58. 58.

    NobodySpecial

    November 3, 2011 at 8:20 pm

    @burnspbesq: From the link above, with highlights:

    The Court decided in favor of the railroad — no real surprise there — but it did not rule based on the concept of corporate personhood. (Instead, it decided the case on very narrow jurisdictional grounds — namely, whether the railroad property in question should be taxed by the state or the county.) Waite may have believed in it, but he didn’t rule on it. The Court gave it a good leaving alone.
    ..Enter, at this point, a guy named J.C. Bancroft Davis, who just happened to be a former railroad executive from upstate New York. (He was also, like me, a son of Worcester, a fact of which I am not proud, as we shall see.) Davis was the court reporter, and it was his job to distribute the Court’s decisions in a publication called the United States Reports. Each separate decision was preceded in the Reports by what was called a “head-note,” which was supposed to be a brief summary of what the case was about, the arguments on both sides, and the Court’s eventual ruling. As part of his head-note for the Santa Clara case, Davis included what Waite had said about the 14th amendment and corporations, even though it had played no part in the actual ruling.

    And that is how corporate personhood became enshrined in American law.

    Read more: http://www.esquire.com/blogs/politics/citizens-united-amendment-6539496#ixzz1cgujGbWl

    Unless you want to argue that Davis was actually a secret justice, I’ll call it like I see it: An Op-Ed attached to a court case, with zero standing in the enshrined law. Now, you being a lawyer with attachments to corporations hip deep in needing that personhood, you might see it differently, and that’s fine. But you should disclose where you line up at on this issue, rather than just pretend that people can’t read as pretty as you.

  59. 59.

    jpe

    November 3, 2011 at 10:06 pm

    There was a case a few years ago where the Bush admin froze the assets of a mosque, claiming it was supporting terrorism. The mosque successfully that its 4th amendment rights had been violated. Absent corporate personhood, the right could run roughshod over disfavored groups (even more than they did). Parks51 could be blocked from building Cordoba House, Media Matters could be prohibited from criticizing Fox News, and on and on. There’s a surface appeal to eliminating personhood for corps, but it breaks down under anything more than cursory interrogation.

  60. 60.

    burritoboy

    November 3, 2011 at 10:09 pm

    Age of Betrayal is actually pretty bad, even though it’s a nicely muckraking text.

    His account is very confusing. He gets the economic theory wrong, for instance. For example, he basically believes that Americans have always believed in a sort of vulgarized version of Adam Smith.

    Not only is that not true, it’s nearly the opposite of the reality. The Federalists, Whigs and Republicans were all more or less advocates of Alexander Hamilton’s economic thought and that of his followers (such as Lincoln’s economics adviser Carey). Hamilton actually was perhaps the most notable opponent of Adam Smith – he dismissed invisible hand arguments, argued against free trade, wanted (and, in fact, instituted) a centrally planned industrial policy, disagreed with Ricardo, and so on.

    What was going on in the late nineteenth century was that an entirely new economic theory was being imported into the US – the neoclassical economics of Alfred Marshall. You can actually see the importation of this stuff as late nineteenth century economists write economic histories, for instance. The texts start uniformly opposing import tariffs (one of the centerpieces of Hamilton’s policies), for instance.

  61. 61.

    Steve

    November 3, 2011 at 10:20 pm

    @jpe: The government didn’t have the right to seize corporate property without a warrant even before the Supreme Court invented corporate personhood. You’re making the category error which says if we want to extend some human rights to corporations, we have no choice but to extend all of them.

  62. 62.

    chrome agnomen

    November 3, 2011 at 10:55 pm

    @Villago Delenda Est:

    indeed, IMO, the only way out.

  63. 63.

    Mangrilla

    November 4, 2011 at 1:06 am

    @Steve –

    which he said look, everyone knows the difference between business corporations and media corporations

    But do we? Is there a reason that just because GE owned NBC that it should have a right over its competitors who don’t own media subsidiaries? This argument always strikes me as naïveté towards the actual structure of media conglomerates.

    By the way, is there any chance we could stop saying that money is speech? The Supreme Court didn’t say that, and this isn’t merely a pedantic point.

    . Hate to be a downer, but they did. Buckley v. Valeo. Honestly that decision is a larger problem than Citizens.

    If money were speech, then all limits on campaign contributions would be illegal.

    . Unless the government had a fundamental interest in stopping quid pro quo donations and the appearance of such corruption. Thus, in the above mentioned case, the limits on direct contributions are held constitutionally permissible while the court (believing that the chances of quid pro quo or the appearance thereof were next to nil in regards to independent expenditures) struck down independent expenditures. Later cases would change that formula slightly but the court has made no bones about equating spending money to constitutionally protected speech.

  64. 64.

    PWL

    November 4, 2011 at 12:25 pm

    To quote Mr. Bumble from “Oliver Twist”: “The law is an ass, sir…”

    Now what do you think that makes the judiciary?

  65. 65.

    mrmike

    November 4, 2011 at 1:49 pm

    @Alan: I don’t think any corporation would have a reasonable argument that they should be allowed to vote. All the directors, officers, employees, and shareholders can vote assuming they are eligible to vote in the US. There’s no good reason why they should be able to exercise that right as a corporation as there is for them to exercise rights to speech and 4th amendment rights.

    Other than the hand-waving, what’s the diff between speech and voting? All the directors, blah, blah, can speak. Why does the corporation need that right then? Certainly premises and privacy might be extended to a corporate holding but what voice does the company have by virtue of its structure that isn’t already the voices of its constituent parts?

  66. 66.

    Ken

    November 4, 2011 at 3:02 pm

    @Steve: You’re making the category error which says if we want to extend some human rights to corporations, we have no choice but to extend all of them.

    It occurs to me that we already distinguishe among flesh-and-blood humans in regard to legal rights. For example, I can be compelled to give testimony in a case, but doctors, lawyers, and clergy have special rights of confidentiality which shield them from having to testify in some cases. Coming at it from the other direction, there’s the legal contract of marriage, which is not available to all pairs of persons. Given these existing variations, I see no reason that a corporation could not be granted some of the rights and powers we puny mortals enjoy, while not getting the whole package.

    (Can corporations adopt? Can they marry? See, we already restrict their legal rights.)

  67. 67.

    mangrilla

    November 4, 2011 at 3:32 pm

    @mrmike:

    Other than the hand-waving, what’s the diff between speech and voting? All the directors, blah, blah, can speak.

    Seriously? Just think about it for a moment: A corporation, union, any group whatsoever, pooling their money together for speech purposes is much more powerful than each spending individually.
    A corporation exercising the right to vote is pointless in comparison, because the corporation acting as one still gets, you know, only one vote (which I believe someone else stated).
    Another group that constantly exercises a collective freedom to speak is political parties themselves. I think this line of argument (Why do corporations need the right to free speech) is really just the wrong way to go, because honestly, I would think we all agree that a corporation using it’s money to influence elections is just as frustrating as someone who is independently wealthy (say, the Koch brothers or Bill Gates, all people whose largesse could certainly effect elections in ways that the left doesn’t appreciate).
    The argument that needs to be made is not whether corporations have certain rights, but that equalization of speech in campaigns is a compelling state interest. Once that line of argument was cut off by the court (which was way way before Citizens), the writing was on the wall.

  68. 68.

    mrmike

    November 4, 2011 at 4:45 pm

    @mangrilla: Seriously? Just think about it for a moment: A corporation, union, any group whatsoever, pooling their money together for speech purposes is much more powerful than each spending individually.
    A corporation exercising the right to vote is pointless in comparison, because the corporation acting as one still gets, you know, only one vote (which I believe someone else stated).

    I get that that’s a benefit to corporations, I just don’t see how it’s one that we necessarily should enshrine as a right of an artificial person. In fact, quite the opposite. And arguably a group constructed for the purposes of political advertisement or lobbying is different than one constructed to make concrete for instance in this context and the laws could (and should IMNSHO) reflect that. I think if you want to speak politically you should have to incorporate a division for that purpose and it should have the same limitations as any political lobbying or PAC group.

  69. 69.

    mangrilla

    November 4, 2011 at 6:57 pm

    @mrmike:

    I get that that’s a benefit to corporations, I just don’t see how it’s one that we necessarily should enshrine as a right of an artificial person. In fact, quite the opposite.

    Well that’s a benefit to ANY collection of individuals, whether it be AT&T, NORML, or ACT Blue. I mean, I certainly don’t have a problem with ACT Blue (Or Media Matters, a non-profit corporation) funding an ad buy 15 days before an election calling for people to vote against a Republican, do you? So why should any other collection of individuals be singled out in that regard? More importantly, why should say, NEWS CORP. be allowed an exemption (or even larger multi-conglomerates such as GE when it owned NBC) with which they can use their large editorial discretion to constantly hammer against candidates, but liberal-leaning corporations that don’t own media wings (Apple, perhaps, or Media Matters) not have the same speech rights?
    Again, I think we get so hung up on this Corporate Personhood thing and I’m not sure why. I think we all agree that a corporation has freedom of speech in some regards (Buy Our Widget!), but why should it not have a voice in political areas, especially ones that will directly affect their business? And again, let’s not forget that certain individuals aren’t corporations (Bill Gates, Kochs), but could, given their net worth, make similar impacts on our political system regardless of CU. And then, I ask the question, Why should Bill Gates be able to make such an impact on the political system as an individual when let’s say I have a small corporation with 10 employees, but our voices are no where near as loud (and, under pre-Citizens United law, even less effective)?

    The answer has nothing to do with corporate personhood, it has everything to do with equalization of speech, something the court cut off at the pass in Buckley. The problems are that money = speech in the eyes of the law, and that the government has no ability to balance the voice of the rich to the voices of the impoverished. Citizens didn’t change that equation.

    I think if you want to speak politically you should have to incorporate a division for that purpose and it should have the same limitations as any political lobbying or PAC group.

    Well: Political lobbying is it’s own different beast for another time. But PAC creation, look… Pre-Citizens, corporate and union-affiliated PACs were still the biggest spenders by far. Citizens hasn’t changed that and to a large degree, corporations still go through PACs (there wasn’t a marked increase in direct corporate spending on ad buys and such after Citizens). The issue post Citizens, seems to me to be more that unions and corporations can funnel money into Super PACs and do it more anonymously. To what extent that happens, I don’t know (you would think that these expenditures would still easily come to light, as any shareholder in a corporation wants returns on their investments, not huge expenditures into the political arena). But the one thing that Citizens expressly did, was allow for disclosure laws which would solve the anonymity problem (unless a lot more Clarence Thomases find their way onto the bench). These have failed to materialize.

    I’m a liberal, but I think Citizens came out right. I question the prudence of the court making such a broad ruling when they certainly didn’t have to, but I would imagine that having Bush government lawyers fighting for the side of upholding BCRA certainly didn’t help (as they made arguments that under BCRA, the FEC could impose criminal sanctions on the publishing of politically-tinged books during election blackout periods). The real issue in money in politics is that under 30 years of supreme court jurisprudence, MONEY = SPEECH, and the government has no ability to counteract the voice of those with the most money. Corporations certainly should have a right to speech, just as wealthy individuals do. I just don’t think we should allow either moneyed interest to drown out the vast majority of people AND corporations simply because they have less in their bank accounts.

  70. 70.

    jpe

    November 5, 2011 at 2:46 pm

    @ Steve: either a corp is a person w/ a 4th am. right, or the government can seize its property. If you have case law to the contrary, please cite it.

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