Was Citizens United Correct?

[reACTIONary]

Perhaps I should not have been, but I was surprised at several recent posts that seemed to support the Citizens United decision based on what I presume to be first amendment absolutism. It has been pointed out that the first amendment protects freedom of the press, and "the press" certainly covers organizations, not just individuals. Was Citizens United the correct decision in support of first amendment rights? Are corporations people, my friend?

Corporations are chartered for specific purposes and their owners are granted significant privileges, notably limited liability, and in some cases non-profit status. Some are chartered specifically for religious purposes, and their owners receive some protection, for that reason, under the first amendment. Some are chartered specifically for the purpose of publishing news and political opinion, and their owner may receive some protection, for that reason, under the first amendment.

Many others are chartered for purposes other than religion or providing information to the public. For instance, selling soap or manufacturing, say, cars. These purposes are NOT protected under the constitution. Even providing entertainment, which sometimes gets a pass under the first amendment, is not, strictly speaking, protected.

In either case, the privilege of limited liability is a privilege, not a right. This privilege is granted by the government at its discretion to serve a public good and may be denied or revoked in the public interest. No one has the right to incorporate. The same may be said, of course, of tax-exemption

So here are some thoughts:

When a corporation is specifically chartered for the purpose of a religious or political agenda, or for the purpose of providing information and news to the public, it is reasonable to assume that the owners are aware of and approve of this purpose. Coupled with the specific protections afforded these activities by the first amendment, there is good reason to protect the owners' first amendment rights by providing some protection to the corporation.

When a corporation is chartered for some purpose other than one protected by the first amendment it isn't quite so reasonable to assume that the corporation speaks for the owners or that the owners approve of or support the corporation's political or religious positions and activities. Under these circumstances, protection is problematic, since it involves speaking on behalf of those owners who may NOT endorse or approve of the message or the activity. This then, would be a violation of the (perhaps minority) owners' rights to speak freely on their own behalf.

Under the second circumstance, it would be more than reasonable to make restrictions on an organization's public advocacy a condition for the privilege of limited liability. This privilege is granted by the government conditions may be placed on it. No one has the right to incorporate - regardless of the purpose or activity that is to be undertaken. Those owners who want to engage in religious or political speech as something other than the PRIMARY purpose of the organization should organize as a partnership and should assume liability for their economic activities. Under those circumstances, it is much more assured that all owners have made a considered choice and are in basic agreement with the positions and the activity itself.

This would ensure that first amendment rights are reasonably honored and that they are not abused by a plutocracy that is indifferent or even hostile to honest, robust public discourse.

[uponit7771]

1. no, money will make a difference in close elections

[DJ13]

2. Citizens United gave the wealthy TWICE the voice to effect elections

- compared to the average citizen.

First they can support any candidates they want with personal donations up to the limits of campaign laws, just like everyone else.

Then they can also buy unlimited support through their control of corporations.

Citizen United was only passed to give the wealthy more of a voice than the average citizen has.

[reACTIONary]

3. The wealthy already have more of a voice...

...than the average citizen has. Perhaps Citizens United was decided (not passed, it isn't a law) on the basis of the principle of free speech, not partisan support of class interests.

If so, does it actually support the principle of free speech? And how could it be overturned without (unduly) damaging that principle?

[DJ13]

4. Perhaps Citizens United was decided on the basis of the principle of free speech

You cannot improve on a Right by giving one group more of that Right than anyone else has.

[reACTIONary]

6. I don't disagree, but how does Citizen's United grant...

... more of a right to free speech to one group over some other group? Some would say it simply prevents one group from being significantly denied the freedom of speech.

I think the correct formulation is Rawls', which might be what you were getting at: That we should all enjoy a fair and equal value's worth of political freedoms, including free speech. The equal worth or fair value of free speech is more problematic than simple free speech and harder to reconcile with the constitution, however. It tends towards judging freedom of speech by the effectiveness of speech. Some speech is ineffective simply because it is unreasonable and incorrect - and that shouldn't be seen as an indication that the speaker is being denied political freedom.

[DJ13]

11. How?

If you're a CEO of a corporation you have a right to donate money to a candidates campaign up to the limits of the law.

Citizens United lets that same CEO donate twice now, as above, and as the corporation he works for.

Joe Schmo cant donate personally and then get his employer to donate as well, can he?

The extra round of support buys greater influence than an average person would have even if they donated personally up to the legal limit.

[reACTIONary]

14. "buys greater influence" - that's my point...

...you are shifting from "freedom of speech" to "equality of influence". The first amendment guarantees freedom, not equality of results.

That isn't to say that the "fair value" or "equal worth" of political rights are unreasonable goals. However, they are more problematic than simple freedom of speech and can actually be construed as a limitation on free speech.

I think a rational for limiting some speech by some corporations based on the value of being granted the privilege of limited liability might tend towards greater equality of influence without unduly diminishing freedom. That is, we set up a trade off between the value of influence through free speech and the value of the privilege of limited liability. If you want to have the one, you substantially give up the other.

[DJ13]

23. Money shouldnt equal speech

Thats why poll taxes were outlawed, isnt it?

Besides, why should corporations have a "right" to speech separate from the ability of those operating the corporation who already have the right to speech?

[Ikonoklast]

5. Money is not Speech.

Accept that first, and everything else follows.

[reACTIONary]

7. How does one speak without spending money?

Are you suggesting that the constitution only protects speech when one stands on the corner and yells? Anything else requires the expenditure of money, and any limitation on the expenditure limits the extent to which one can speak freely.

It is just a fact that has to acknowledged - limiting expenditures on speech limits the freedom of speech.

[Yo_Mama]

10. And limiting corporate speech of organizations like the ACLU

Gives the wealthy more power, not less.

"Corporations" under the law include a wide range of non-natural entities. The free speech rights of poorer individuals are really most often exercised in the aggregate.

By pooling my small contributions to the ACLU with those of many other individuals, a powerful advocacy group is formed that defends individual rights. Depriving such organizations of the ability to "electioneer" simply enfranchises the wealthy at the expense of the average individual.

[reACTIONary]

43. Good point! NT

[Ikonoklast]

12. The those with more money have more speech.

And that is the problem, exactly.

As there are limits on every other right, there needs to be limits on Money as Speech.

[tama]

9. It is speech.

A promise. Funny thing is that 1st Amendment does not protect fraudulent promises such as Ponzi schemes, which is what money-as-we-know-it is.

[reACTIONary]

22. The first amendment does not protect commercial speech...

...but it does protect political speech and the freedom of conscience. Is your suggestion that expressing a political, religious or philosophical opinion can be equivocated with promoting a fraudulent investment? How does that work - they seem fundamentally different to me.

[tama]

38. If you consider a ponzi scheme

"expressing a political, religious or philosophical opinion" I'm not impressed.

[reACTIONary]

42. Maybe I missed your point. NT

[tama]

45. Seems that way

The point was that in terms of legal technicalities money is 1) a "promise" (and therefore a form of speech) and 2) in the way it's created (fractional reserve and interest) it's a giant Ponzi scheme aka Pyramid fraud.

And as 1st amendment does not protect fraudulent speech, giving 1st amendment protection to donations of fraudulent Ponzi Scheme money to politicians is clearly legally wrong decision. Not to mention morally and in terms of common sense.

[reACTIONary]

48. I don't consider money to be a promise...

... any more than anything else of value that might be traded.

Fractional reserve banking is not a ponzi scheme, it is the only economically viable form of banking in existence since its creation in the middle ages / early Renascence. That covers national banking systems, free market banks, and regulated banking. Nothing else exists because nothing else works as well.

If you are interested in a defense of fractional reserve banking against the current libertarian / austrian critique, I suggest you look into the work of Lawrence H. White, formally the F. A. Hayek Professor of Economic History at the University of Missouri–St. Louis and currently (I believe) at George Mason University.

Here is his review of Huerta de Soto's libertarian / austrian argument against fractional reserve banking:

Fractional Reserve 1

Fractional Reserve 2

Fractional Reserve 3

[tama]

53. Money is promise

1) that you can pay your taxes in FIAT money created with approval of the tax collector (usually "state&quot .
2) that in fractional reserve FIAT system you can change the fraction of debt created by private banks (basically M1, M2, M3) into legal tenders issued by central bank (M0).

The latter promise is the crucial and fraudulent Ponzi scheme promise of the fractional reserve banking and money creation, that when you take a loan from bank, you can change what is today just electronic data in computers fully into legal tenders, coins and notes issued by central bank. And as you very well know, the amount of fractional debt on debt and interests on top vastly surpasses the amount of legal tenders, which they are promised to be fully translatable.

I don't give a fuck about libertarian / austrian arguments. Your historical argument is partially true, nothing else works as well to expand and monetize all aspects of life as fractional reserve ponzi scheme, and to rob natural resources from people to banksters. The limits of growth of the fractional reserve ponzi scheme, which must grow continuously and exponentially to stay functional, are of global scale. 2008 was the first clear sign that the global limit of the ponzi scheme has been met and is starting to collapse, and governments are generally doing everything they can do to postpone the inevitable collapse. By supporting banks more and more and more by robbing people more and more and more and destroying environment more and more and more to keep "growth" aka ponzi scheme growing more and more and more.

[reACTIONary]

58. While you may not give a...

... fuck about libertarian / austrian arguments, when I read your posts they seem to be based on libertarian / austrian theories and critiques. Of course, this impression may be wrong. Perhaps you could give me a reference to a systematic, technical, economic exposition of your critique so that I can understand it more fully and differentiate it from what I hear coming from the libertarian / Austrians.

As far as fully turning a loan credited to your bank account into legal tender in the form of coins and notes issued by the central bank, you can do that. I don't see why you would want to, or why anyone should consider it important, but I don't see why you think it can't be done.

My view is that fractional reserve banking is a sound and ethical practice that is essential to a modern, productive economy. Did you get a chance to read any of the three links I provided?

[tama]

60. Thing with Austrian school

is that they don't deny the inherently destructive force of capitalism as Marxist economy does, but they cherish it, Marxism does not being fundamentally ethical theory. Criticism of money creation is not limited to those schools, guess who said
"It is well enough that people of the nation do not understand our banking and monetary system, for if they did, I believe there would be a revolution before tomorrow morning." yup, Henry Ford. Lately, many people have heard the money creation explained by Zeitgeist movies etc social media.

I'll read your links after you show that you understand what is said in this discussion - just understand, not necessarily agree - and after that still claim that they are relevant. To understand you need to think on systemic level, not just from individual point of view. Fair enough? Can you do that? Think critically on systemic level?

First, what is the ratio of the whole amount of fractionally created money to amount of legal tenders contained in the system? Quick search gave this graph:



Visual representation gives the idea, but it is even more important to understand that the exponential relation is exponential systematically, as a mathematical truth. It can behave no other way, just like a Ponzi scheme needs to grow exponentially or it collapses. And in finite world nothing can grow exponentially and all Ponzi schemes collapse, also the whole system of fractional reserve banking.

Second, money creation does not produce anything tangible like food, clothing etc, which requires physical work, energy. The relation of money creation and financial system to real economy is described by the notion of "purchasing power", most simply the value of monetary units expressed in units of energy or more precisely ability to do physical work. With couple minor exceptions energy economy is limited by the amount of
solar energy available to humans, which includes also solar energy stored in fossil fuels. This is rough but sufficient on the scale we are speaking: all the money created by fiat and fractional system combined cannot have purchasing power that exceeds the amount of solar energy available to humans. And as the use and availability of fossil energy storage is peaking, the purchasing power of the whole monetary financial system cannot grow anymore.

Third, as ability to create money by fractional system is not equal but very limited and given just to few special corporate persons called banks, banks and those who control them get exponentially growing control of real economy of physical work. Occupy movement launched the meme 99% vs. 1%, but the real issue is the number of corporate persons with privilege or fractional money creation vs. the number of natural persons of global population without that privilege.

What could be the ethical justification of such inequality?

[reACTIONary]

61. What could be the ethical justification of such inequality?

That we are all better off, much better off, for it.

Does your chart account for population increases over the same period?

[tama]

63. That could be it

if it was true. But it ain't true.

Sure, there are more humans around at the moment than ever. But is that a measure of happiness and well being? In terms of population biology our species is in overshoot and there is much worry for our children.

If you measure happiness and well being by consumption levels, it is understandable how American point of view can be distorted, as it is currently the center and armed fist of the financial empire and US population of 300 million (or rather the upper class fraction of that) consumes quarter of global resources which it robs through fractional money backed by US military power. But upper class US point of view is not global truth. Not even close.

[Yo_Mama]

8. See the ACLU amicus brief, which was arguing basically for the plaintiff

http://www.aclu.org/free-speech/citizens-united-v-federal-election-commission-aclu-amicus-brief

Yes, I believe the decision was correct.

[reACTIONary]

15. I'll take a look at the ACLU brief, but in the mean time...

...what is your opinion of the rational provided in the OP?

[Yo_Mama]

36. There is no constitutional rationale by which the government can differentiate

So I don't accept the OP rationale. I believe in free speech protections because I think it underlies the basics of a democratic society, and I desperately want to maintain that society.

I also believe that free speech tends to create understanding among the rational majority.

Since there is no constitutional way to really distinguish between the ACLU's right to electioneer and some corporation's right to electioneer of which I really disapprove, I think the OP is flawed.

I cannot conceive of any way that restricting the ACLU's right to publicize the types of things prohibited in Citizen's would make this society freer.

Creating barriers to political speech by organizations always works in favor of the well-funded, majority causes. Some of those I approve of - it is now the majority position in this society to disapprove racial discrimination, and I believe, discrimination on grounds of sexual orientation. But there was time when states tried hard to get at the NAACP, for example. The history here shows why this type of speech restriction is terribly dangerous.

[reACTIONary]

46. Thanks for your response...

...on the whole I agree with you (and, by the way, I am a card caring member of the ACLU).

I'm not sure that the distinction is either constitutional or good policy, but distinction being advocated here is between corporations that have speech as a primary purpose (which would cover the ACLU and would have covered Citizens United allowing them the freedom to show their movie) and corporations that have as their primary purpose some other, unprotected purpose.

At the time of the ruling I heard this distinction made by several commentators.

[jberryhill]

55. The "primary purpose" of Citizens United was to make a movie

Okay. Apply the distinction here.

What activity was the corporation in question - Citizens United - organized to do?

[Fire Walk With Me]

13. "Fascism should more appropriately be called Corporatism because it is a merger of state

and corporate power." ~Benito Mussolini, dictator

Under Citizens United, America is a Fascist country. If you've noticed the burgeoning police state, it becomes complete.

[reACTIONary]

17. Fascism is an illiberal, undemocratic, authoritarian political ideology...

...which is fundamentally different from our liberal, limited democracy. We do not live in a police state. Corporations exist simply because they serve the public interest and to the extent that they do not, they may be regulated, restricted and abolished.

[Fire Walk With Me]

27. Those are nice theories. In reality

-You will most likely be beaten and arrested if you march with a group such as Occupy, against a bank, during a peaceful protest. 7400+ have been, yet zero bankers are in jail for padding their bonuses with taxpayer monies, much less for illegal practices such as predatory loans, etc. You would learn that the Bill of Rights, especially the 1st and 4th Amendments, are dead.
-Research corporate donations to politicians through sites such as opensecrets. Lobbying groups as well.
-It is estimated that $2 billion was spent on this election cycle.
-Some politicians are perfectly happy to vote for legislation promoted (and donated for) by lobbyists. Recently one voted yes for the NDAA after receiving around a quarter-million dollar donation by a night-vision equipment company who stand to profit wildly from the increasing police state. Surprise, they received an enormous contract shortly thereafter. Very much like Cheney owning Halliburton stock and giving them preference for government contracts. Cheney's stock value went through the roof.
-Check my recent post regarding how private prison companies use the drug war to fill their for-profit prisons.
-I see no regulation or punishment against wall street and the banks after the theft (they call it a bailout). Zero regulation on "robosigning" foreclosure mills despite its being known for over two years.
-Rich industrialists such as the Koch brothers are intent upon purchasing politicians who will disable the EPA, because the Kochs stand to lose an incredible amount of money upgrading their factories to EPA standards. Far cheaper to purchase politicians than to upgrade.
-Under Citizens United, this IS a Fascist country, by the dictator Mussolini's definition.

If corporations can directly influence politics (read: legislation involving them), and if politicians vote where the money is, corporations effectively come to control the country. If money is speech, they are far louder than the citizens whom this government is supposed to represent. "Democracy" being a word with the root meaning "The voice and will of the people."

[reACTIONary]

44. if you march with a group such as Occupy (I did)....

...You will most likely be beaten and arrested (I wasn't).

Your over all assertion suffers from a "performative contradiction". If you can argue openly and vigorously in public that you live in an oppressive, authoritarian police state, you don't.

[Lady Freedom Returns]

47. " in an oppressive, authoritarian police state, you don't." No totally, not yet.

It is like the Frog in the pot of water experiment. The frog will jump out if the water is hot. Yet, if you place it in cool water, it will sit there. You start to raise the temp slowly. The frog will sit there and cook to death.

That is what is happening right now. We are the frogs and the corps. are the scientist. They are slowly buying our rights away. They will feed us lines. They are using the law that is supposed to protect us, against us.

Many years ago, the big businesses found ways to own people. They would give special credit in there stores so the workers could buy things they need. Many even had housing to "help" their employees. Soon, when the workers started to relies, they were owned by that company. But thanks to things like the union movement, such practices went away.
But now the corps are trying something new. They are trying to get rid of things that made the union movement possible. That way they can go back to those days. The freedom of speech is their first target.

[reACTIONary]

50. You are making a slippery-slope argument...

...which can be a valid and compelling argument. Eternal vigilance is the price of liberty.

However, it should be remembered that ALL politics takes place on a slippery slope.

[Lady Freedom Returns]

52. It not so much politics as it is business.

The large corporations that have large numbers of people working for them are trying to find way to control them. The best way to do it is to get rid of rights. They are working at that using the law that is supposed to be protecting us. They are aiming for plutocracy.

[reACTIONary]

59. I think that is an exageration, but...

...there is certainly a strong element of truth to it.

On the other hand the masses of the people are, in turn, working to protect themselves and to limit the plutocracy. The resulting conflict is "politics", not business. One group may have fears we are moving toward "totalitarian communism", while the other group may have fears we are moving towards "totalitarian fascism". Both can, and do, make the "slippery slope" argument.

The truth is that we must always act politically on a playing field that isn't at either extreme but can be imaginatively, and (IMHO) unrealistically, be conceived as sliding towards a complete victory for one or the other extreme. We are always taking action on a slippery slope, but we are never actually sliding down.

Fear of the "slippery slope" is not always a good rational for rejecting limited, reasonable policies that make good sense in the muddle of the here and now.

[Lady Freedom Returns]

65. It is not an exaggeration. It is happening.

They are doing it slowly so John Q Public will not see it. Those that are seeing it are trying to let out the warning. However, those that are not feeling it yet is waving it off.

The big businesses have learned from history on what went wrong for them. They are covering their bets now. They know not to rush this. They will take their time. It is not a slippery slop we must worry about, it is the rocking cradle that we need to worry about.

[Fire Walk With Me]

56. You are stuck in semantics and theories while the facts are in your face.

Aren't you aware of HR347, the anti-Occupy law? It is now a federal offence to mic-check or protest in the area of anyone protected by the secret service. Sort of an ultra "free speech zone" enforcer. It's not democracy if they don't listen to the will of the people. The NDAA allows for indefinite detention of US citizens without trial or representation. It was just this week again signed into law, as well as a FISA warrantless wiretap law extension. 64 drone bases being developed within the US to spy on citizens they now classify as potential terrorists in order to create a market for said drones and drone bases. "Americans as terrorists" is a wonderful new market for, say, the company selling millions upon millions of hollow-point bullets to the DHS (which they will not discuss). "Americans as terrorists" is a preamble to the police state. To endless, limitless power grabs and military industrial complex (and prison industrial complex) budgets. Cash cow using the Milgram experiment. TSA, DHS, militarized police (who through special orders such as LAPD SO 11, report directly to DHS) are all just doing their jobs, whatever they are told they are told it is. Stifling the 1st and 4ty Amendments is already done.

All of the post-9/11 neocon power grab items are being extended or strengthened, The TSA are expanding to trains and buses. NYPD carrying machine guns have been sighted on a public transport, in the name of anti-terrorism. The FBI and DHS lied about having monitored Occupy from day one, did nothing against a potential assassin of whom they were aware, have records on all of us in their "fusion centers". An LA Times article just this week strongly implied that police and federal agents believe that Occupy presence directly equals the potential for terror. I posted this in GD, if you do not frequent the Occupy Underground subforum where I post most similar data.

"Cop strongly implies Occupy presence means increased terrorism threat; Federal agents at parade"

http://www.democraticunderground.com/10022137604

There are some on DU who still deny Federal-level involvement in the spying upon and regulation of Occupy and similar movements. Yet there it is from a cops' mouth.

"How Private Prisons are Using the Drug War to Generate More Inmates"

http://www.democraticunderground.com/10022144395

Where is the government regulation on privatized prisons promising 90% occupancy rates to investors (and which are funded by our tax dollars)? Why is Wells Fargo allowed to own millions of shares in prison privatizing companies? The rich make the decisions, and Citizens United helps clear their path.

[reACTIONary]

57. Nope. Not "semantics and theories". Actual experience in the real world...

...your characterization of America as a fascistic, authoritarian police state just doesn't hold up to the everyday experience of the American citizens.

[Fire Walk With Me]

62. I know because I've attempted to move. To quote:

"Those who do not move do not feel their chains." ~Rosa Luxemburg.

Also, goodbye.

[Egalitarian Thug]

16. Of course not. It is an abomination. n/t

[reACTIONary]

19. "Abomination" covers a lot of ground. Could you be more specific? NT

[Egalitarian Thug]

21. Corporations, or any paper entity, are not people. Money is not speech.

Is that specific enough?

[reACTIONary]

24. Yes, that is specific. Nonetheless...

...it falls far short of an "abomination".

In another thread someone pointed out an interesting fact. The first amendment specifically prohibits "abridging the freedom of speech, or of the press". Note that it specifically differentiates speech, which is an individual act of a person, from the press, which is generally a commercial activity, carried out by an organization, not an individual person. Thus the constitution seems to give credence to the notion that not just individual persons, but also commercial organisations have the freedom of speech.

[Egalitarian Thug]

28. One last kick to your attention seeking flame bait. "It falls short of an abomination" is only your

misinformed opinion.

a·bom·i·na·tion
http://dictionary.reference.com/browse/abomination?s=t

noun
1. anything abominable; anything greatly disliked or abhorred.
2. intense aversion or loathing; detestation: He regarded lying with abomination.
3. a vile, shameful, or detestable action, condition, habit, etc.: Spitting in public is an abomination.

[reACTIONary]

32. You are right. "An abomination" might not be all that much of a big deal...

...however I was hoping to get your take on the theory that the first amendment DOES protect SOME paper entities, since is specifically names "the press" which does encompass commercial enterprises that are organized as "paper entities".

The PTA I belong to often advocates for tax increases, bond issues, and even publishes voter's guides for the school board election. We firmly believe we are exercising our first amendment rights. And yet we are just a "paper entity".

So, could there be some paper entities that are entitled to first amendment rights, and if so, how would you distinguish them from those that you don't believe deserve such rights?

[Egalitarian Thug]

37. OK, it seems you really want to talk, my apologies for assuming that you were just

baiting the bull (an all-to-common DU pass-time that I am occasionally guilty of, myself).

The First Amendment offers protection to individuals and specifically the entity of the press. That specific exemption is not a pass for any other organization except that which also has a specific exemption. The press was, and still is, recognized as an essential component to the function of what most of the founders of this nation wanted to create. Like religion, it is an exception important enough to merit special clarification.

Your PTA has no such right. It is composed of individual human beings who do have the right and the freedom to speak individually or as one when the occasion merits that voice, but the organization itself does not (in a sane world) have any rights at all.

So, the answer to the original question and the circumstances you've interjected is still, no.

[reACTIONary]

40. Thanks for the answer! NT

[reACTIONary]

33. BTW, "Egalitarian Thug" is a great nickname. NT

[RB TexLa]

18. Yes it was correctly decided.

[reACTIONary]

20. I'm wondering what your opinion of the rational...

...for some limitation of corporate speech provided in the OP might be, and I wonder if you might know whether or not the SCOTUS considered and rejected any similar rational.

[Tab]

25. There's another thread somewhere

(and articles out on the Interwebs) where some guy was caught as the only person in a multi-person required carpool lane outside of L.A., but he's going to contest his ticket on the basis that he had articles of incorporation with him in the car and since "corporations are people too..." his car wasn't thus underoccupied.

He's flawed in his argument, of course, because that's not quite what Citizen's United conferred, but it should make for an interesting court transcript.

[reACTIONary]

26. My OP was originally a response to that thread....

... I decided to OP it to disassociate it from the particular legal theory this fellow is pursuing.

[Recursion]

29. The idea of corporate personhood dates back to the 1400's

That in itself isn't a new idea; Roberts quoted it because it was such an established concept.

The novel idea was that Congress does not have the authority to limit spending on political speech, which had been established for over a century that they did. Corporate personhood is the wrong thing to complain about; that's as old as the East India Company.

[reACTIONary]

34. Agreed - Personhood is a red herring. NT

[Recursion]

35. Yeah. Anyways, to my armchair conlaw opinion, the decesis was not stare

It is a reasonable reading of law, but not of precedent. Case law had established pretty firmly that Congress's interest in maintaining propriety and the appearance of it in elections outweighed fictitious persons' right to speech in most situations.

[Fire Walk With Me]

30. "Corporations are people, my friend." ~Mitt Romney

Of course, they are psychopathic, sadistic people. In Mitts further words regarding the hours and conditions experienced by Chinese slave labor in a Bain Capital company:

This is what awaits us within the US if Romney and his ilk continue to influence and corrupt.

[Great Caesars Ghost]

31. If there is one thing I say....

it's that it doesn't matter. The last election proves that all the money couldn't get the job done.

[Nye Bevan]

39. The ACLU says "yes", and, as usual, I agree with the ACLU.

If Congress passed a law that banned the publication of a book that criticized a candidate in an election, within a certain time period prior to the election, I don't think that law should be constitutional.

[reACTIONary]

49. I think your analogy is correct...

...it fits my understanding of the basic issue in Citizens United. But the decision wasn't as narrow as the issue itself, although it could have been.

[Puregonzo1188]

51. Actually, the ACLU said yes to a very narrow issue and the court ruled very broadly against

campaign financing laws.

The court could have ruled in favor of Citizens United and in favor of the ACLU without overturning campaign finance laws. The court could have ruled that Citizens United's movie on Hilary Clinton was not covered as an elections communication act. One of the complaints that Justice Stevens made in his dissent was that the court dealt with issues not litigated by any of the parties and essentially asked a different question than was presented.

It was a narrow question, that the court ruled broadly on.

[reACTIONary]

66. +10 - In fact...

...Citizens United was motivated to become a "documentary film producer" by the earlier FEC ruling in favor of Moor's Fahrenheit 9/11. They were actually trying to stay within the established bounds.

[cthulu2016]

41. DU is a corporation

[jberryhill]

54. Question for you

So your point seems to rely on looking at the corporate charter, in order to determine whether "speech" is part of that charter.

You seem to accept as given that some corporations constitute media companies, and that there is some kind of distinction to be made between companies that sell soap, and companies that, for example, make movies.

The first problem is that most corporate charters are not in the least specific to any sort of business at all. The overwhelming majority of corporate charters state that the corporation is formed for the purpose of conducting "any lawful business". Most states don't require anything more specific than that.

The second problem leads me to wonder whether you actually read the case. Specifically, what was it that the actual company - Citizens United - was organized to do?

In other words, if we apply your "what is the business of this corporation?", can you explain why the corporation in question fails the test you are proposing?

It was a movie production company. It is not at all unusual for a movie to be made by an individual production company formed for the purpose of making a movie.

But, in your view, does Universal Studios or Sony Pictures have a first amendment right to make movies about whatever they want or not?

[reACTIONary]

64. Thanks, thoughtful questions...

...my notion was to use the charters and I believe you are pretty much correct about most corporate charters being rather vague and permissive. As explained below, there may be a remedy for this defect.

Citizens United was and is (using language derived from the ACLU CU brief) an "ideological advocacy organization" that specializes in documentary movies. IMHO it was simply exercising its rights under the first amendment. I believe that organizations such as the ACLU and Citizens United have a constitutional right to engage in protected speech regardless of the electoral calendar. At least that's my opinion, and that opinion seems to be shared by many DUers, by the ACLU and the SCOTUS itself.

Not all movies and entertainment constitute protected speech, but to the extent that they do, my opinion is that they should be protected from government regulation. So, in my view, Universal Studios and Sony Pictures do have a first amendment right to make such movies. (Keeping in mind that obscenity is not traditionally considered protected speech in and of itself.) In my opinion, if Zero-Dark-Thirty had been released just prior to the election, the FEC should have no business scrutinizing that decision.

One further question is whether or not organizations that engage in protected speech have a constitutional right to organize as corporations enjoying the privilege of limited liability. I'm not sure that they do. This is a privilege granted for the benefit of the public good, and might be withheld in the interest of the general welfare.

My personal view is that "ideological advocacy" organization that would fall under the 501(c)3 category should, as a mater of policy, be granted the privilege of limited liability. I am not so sure about organizations that would not fall under the 501 categories. The value of this privilege might be used as a means of limiting the speech of corporations that are not organized for the purpose of "ideological advocacy". The privilege of tax exemption and of allowing deductions for contributions is limited in this way and a list of the various types is maintained by the IRS. This list, or a similar one, could be used rather than the vague purpose supplied by the corporate charter.

I actually found a similar suggestion in the ACLU's CU amicus brief: the ACLU strongly believes that this Court should hold that the MCFL exception for nonprofit, ideological corporations that do not accept corporate funding should extend to organizations like the ACLU that only accept de minimis funding from sources other than individual donors. Contrary to the position it has taken for years, the government now apparently concedes, or at least acknowledges, that MCFL applies to nonprofit, ideological corporations that are financed “overwhelmingly” by individual donations. The ACLU urges the Court to adopt that interpretation of MCFL, if it does not overrule Austin entirely.

Admittedly, this is a "fall back position" but the ACLU seems to be making the same distinction I was attempting to make, that of an "ideological advocacy" organization, as opposed to other organizations that are focused on more mundane commercial purposes.

Now, the question is, WHY would we want to impose these limitations? The DU posts from those who are advocates of regulation give a variety of reasons, but I propose a FIRST AMENDMENT rational. This wasn't made clear in the OP.

My understanding of the first amendment is that it not only protects the freedom to speak, but also the freedom to REFUSE to speak and to DENY SUPPORT for speech that is contrary to one's own views and opinions. Minority share holders in a corporation that has a purpose other than advocacy may be having their assets used for speech that is contrary to their convictions. They contributed capital for the purpose of, say, building cars, and end up having those assets used to further the election of, who knows, Mitt Romney. In my opinion this is a violation of their first amendment rights and should not be allowed.

This is not, however, true of an "ideological advocacy" organization such as the ACLU or Citizens United. Anyone contributing capital to an organization that manifestly exists for the express purpose of advocating an ideological point of view understands how that contribution will be used, and is exercising free speech; she is not being compelled to support the opinions of others without consent.

Thus I believe that restrictions on the speech of organizations that want the privilege of limited liability can and should be made as a matter of fairness, under the first amendment, to protect those who have contributed capital from having their contribution misused against their personal convictions. And I believe that this can be done without restricting the liberty of those who want the privilege of limited liability in the public interest of advocating an ideological point of view.

[TheKentuckian]

67. Yup, the problem is more charter law than anything else.

I wouldn't have made the ruling in the direct interest of preserving election integrity but I don't see how anyone can't see the pickle the whole situation presents or think it is crazy to rule otherwise. Without some level of "personhood" you can't have this website.

I do understand why charter law and now long tradition are missed because it the concept of it being otherwise is buried and it was a great failure that the rationale for granting incorporation was not codified in the Constitution to preserve it rather than accepting it as part and parcel. Certain protections and rights are granted for the purpose of allowing ______ benefit to the community and/or the people coming together in this cause.

Over the years something between to make money and because we want to do X have slid into because they want to, have paid the appropriate fees, and completed the paperwork which means unbounded and unconditional.

The fix isn't even that radical and is also not in the wedge/hot button zone which is a bonus. The law can already differentiate companies for other purposes like taxes so it is no great leap to bring such concepts to bear on speech or anything else.
Each type has has a set of rules dictated by charter, the rules are set as to prevent one from becoming the other and make interactions between different types of constructs transparent so that spin off shops don't end around the intent of the law.

The major problem is that the time may have passed for unilateral action, it might need to be in concert with a global initiative. We might still just have the weight to throw around to make it so but each year makes it less certain.
We need to do it though, a tool for the people is a piss poor master of them.