The Sovereign Mind

Free thought on politics and real life

In Defense of the Court

with 6 comments

As if the United States Supreme Court needs a defense from me…

The Supreme Court ruled last week that the government cannot prevent organizations, including corporations and labor unions, from weighing in on political campaigns. The reaction I’ve seen has been almost all negative, with some claiming that it is the end of democracy as we know it. While I think that’s a bit of an exaggeration, I am concerned that this will make it even easier for corporations to gain political influence. However, what strikes me about that argument is that it is completely irrelevant: if something is unconstitutional, it doesn’t matter if we like the consequences of it or not.

Glenn Greenwald starts with that point and then goes on to make several other good points in defense of the court ruling, including linking to this response to those who say that money is property, not speech, and also posting a follow-up on the subject.

As someone with a lot of opinions but not much time to write, I’ll just ask the reader to consider Glenn’s writings on this subject to be mine (in the non-plagiarism sense, I mean), because I think I agree with him entirely.

But since I can’t bring myself to write an entirely “go read this guy” kind of post, let me add this thought experiment:

Is it unconstitutional to restrict a person from expressing his political views? Of course it is unconstitutional.

Is it unconstitutional to restrict that person from gathering with like-minded people to pool their voices together? Of course it is unconstitutional.

What if that pool of people decided that they needed to engage in fundraising efforts, such as selling stuff, in order to raise money to get their message out? Would it be unconstitutional to ban that? I think it would be, and I don’t see any real difference between that and a corporation or labor union buying air time to get their political views heard.

Now, as I said, I do worry about the influence of special interest groups in politics, but the way to fight them is not to take away the rights of the people in those organizations–it’s to exercise ours. Corporations may be considered “people” in some sense (although really I think that line of reasoning is a distortion of the decision–that’s not really what it said), but clearly they are not fully “people”. They cannot vote, and as long as they can’t, they can only be as powerful as we, the voting kind of people, allow them to be. That might sound overly idealistic–to believe that the people will rise up to think and act for themselves instead of allowing themselves to become the pawns of higher powers–but it also happens to be what the founders were counting on when they went all in on this new experiment called democracy.

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Written by Mike

January 24, 2010 at 11:02 pm

6 Responses

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  1. Hello, nice post.

    You can mark me down as firmly against though. Definetly in the “end of democracy as we know it” crowd.

    ” I don’t see any real difference between that and a corporation or labor union buying air time to get their political views heard.”

    I’ll explain the difference.
    A corporation isn’t like minded people.
    1. They have stock holders, many of whom may be foreign citizens or governments.
    2. The decision made isn’t a choice by the group, but by the leaders of group, and the leaders aren’t selected by those in group. (Except for unions)
    3. The constitution does not define a corporation as a person. In which case, the decision should be in Congress’s hands, not the courts.
    4. Money isn’t speech. And there is precident that backs that up firmly. I can have sex with a woman. And I can give money to a woman. But I can’t give a woman money for sex. A corporation still has freedom of speech, they just can’t spend unlimited amounts of money on it.

    As of today, if a congressmen is about to vote for a bill that hurts a company, that company can legal threaten to spend 20 million dollars attacking them if they vote against the company. (And the average House seat only costs about 1 million to win) Without any clear constitution law giving corporations the full rights of individuals, I see no reason we should volunteer them.

    The BookGuy

    January 24, 2010 at 11:44 pm

  2. Hi BookGuy. Thanks for replying.

    “A corporation isn’t like minded people.”

    I think it is. They have a single goal: the financial success of the corporation. Sure, it may not be an altruistic goal like saving the rain forest, but I’m sure you’d agree that freedom of speech is not limited only to speech that has a non-selfish end. Corporations would spend political money only to the end of the financial success of the company, not for general political purposes unrelated to the financial success of the corporation, because they have an obligation to stockholders to do so.

    “1. They have stock holders, many of whom may be foreign citizens or governments.”

    The fact that some of the stock holders may not be citizens should not limit the right of those that are citizens to have the organization to which they belong speak on behalf of their interests.

    “The decision made isn’t a choice by the group, but by the leaders of group, and the leaders aren’t selected by those in group. (Except for unions)”

    The leaders are chosen by the group. Stockholders choose the board members. And those stockholders that don’t like the political speech of the organization can withdrawal their membership. For example, I am pro-life, but I don’t belong to groups that protest in front of abortion clinics. I agree with the end they are trying to achieve, but I don’t approve of the way in which they have chosen to express their views, and so I choose not to participate.

    “The constitution does not define a corporation as a person. In which case, the decision should be in Congress’s hands, not the courts.”

    As I alluded to in the post, I don’t think the personhood of corporations is the real issue here. As Glenn wrote in the follow-up that I linked to, all 9 justices agree that free speech rights apply to organizations. And also he makes some good points here: http://letters.salon.com/opinion/greenwald/2010/01/23/citizens_united/permalink/4516d48dcb324ddf1abb5ca09235aea1.html

    “Money isn’t speech.”

    I think it’s clear that the the right to freedom of speech must necessarily include the right to expend resources in the exercise of that right. Almost every form of speech involves some form of money–and some more than others. Glenn rebuts the argument in the second link I posted above. I know I’m just linking to Glenn a lot to make my point, but that is my point: that I think his argument holds up, and so there’s no point in repeating his entire argument here.

    Mike

    January 25, 2010 at 9:23 pm

  3. I work for a corporation. I disagree strongly with the opinion of the owner. Thus, a corporation is not a group of like-minded people. Not sure if that is an important point, but there is a very clear distinction between groups who get together to express political opinions and a corporation that hires people irregardless of political opinion.

    “The fact that some of the stock holders may not be citizens should not limit the right of those that are citizens to have the organization to which they belong speak on behalf of their interests.”
    The fact that some of the stock holders may be American should not give foreigners free reign to interfere in our politics.

    “Almost every form of speech involves some form of money–and some more than others”
    This speech right here right now doesn’t. At this moment you and I are each standing on equal ground. This right here is exactly the thing the founders wanted to protect.

    If Exxon buys up 4.5 billion dollars in marketing and advertising, how can I (or anyone) compete with that? Barack Obama was called a once-in-a-generation political speaker and he raised about 600 million in an entire year. Yet Exxon can spend only 10% of their annual profits and have an effect 7.5x as massive.

    The power and value of individuals to speak is destroyed if Corporations can compete with them.

    This would be like letting major league baseball players play in the little leagues. No kid would ever get to play again. How is that freedom?

    The BookGuy

    January 25, 2010 at 10:08 pm

  4. Oh, and since you linked to Glenn several times, I read his argument and have provided a counter argument at my site. 🙂

    The BookGuy

    January 25, 2010 at 11:57 pm

  5. “This speech right here right now doesn’t”

    It’s much more difficult for those who can’t afford a computer or internet access to engage in this form of speech.

    I read your counter-argument on your blog, and it is nicely done. I have to admit that your argument regarding the transfer of constitutional rights (or the impossibility of it) is interesting. I’ll have to think more on that subject, but for now, at least, I still find Glenn’s argument to be sound. It’s not fair of me to say that, since I’m not giving you specifics on why I feel that way, other than those I mentioned above. But, to be honest, I don’t have the time or mental energy to devote to a drawn-out debate over the specifics. I respect your point of view, and like I said, I’ll have to think more on your non-transferability of rights argument, and maybe you’ll convince me yet.

    And thanks for the link and the compliment from your post.

    Mike

    January 26, 2010 at 10:24 pm

  6. BookGuy,

    I’ve had some time to consider your non-transferability of rights argument more carefully, and I’ve found it interesting but unconvincing.

    If I understand you correctly, you are saying that the right to free speech does not include the right to a business transaction to facilitate speech. So, for example, the government should be able to prohibit a business transaction such as the purchasing of advertising time, even if the only reason it would prohibit it is to limit the ability of the purchaser to express a political message.

    I have 2 objections to your argument:

    1) I wonder how far you are willing to take this argument. Would you say that the government has a right to prohibit a business transaction to buy billboard space, for the sole reason that the buyer wants to put up a political message? Does the government have the power to prohibit me from engaging in a business transaction to buy hosting services for a web site, if that web site is for political speech purposes? As I said before, almost all forms of speech involve the exchange of money to some extent, other than shouting from my front door. So I support the courts judgment, and as Glenn points out, so do all 9 justices, that freedom of speech includes the freedom to spend money to facilitate speech.

    2) Your argument that the government can prohibit business transaction that facilitate the broadcast of a political message can be applied to organizations of citizens, or even individuals, not just corporations. Would you argue that it would be constitutional for the government to prohibit me from forming a group of like-minded individuals to purchase air time or billboard space? If you would argue that, then I respect your consistency, but I think we’d have a fundamental disagreement on the meaning of freedom of speech. If you aren’t arguing that, then that means your reasoning regarding the non-transferability of rights is not sound since you are only willing to apply that reasoning to situations that you disapprove of for other reasons.

    Mike

    January 27, 2010 at 11:08 pm


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