XOM makes more in profit EVERY DAY than most families will earn over the course of ten generations. They now have unlimited influence. Have a nice day.
Actually, a lot of corps make more in profit every day that most families will earn over the course of generations. But money is speech, don'tchaknow. Money really DOES talk.
The flip rejoinder here is, "Yeah, and they pay more taxes than most families will pay over the course of generations, too." Glibness aside, though, I've never been happy with either side of the argument, here.
I understand the philosophy behind, "money is speech," but I refuse to take that at literal, face value. We tax money, for one thing, while the notion of a tax on speech is both stupid and reprehensible. Unless you're dealing with Ayn Rand, you'll usually set someone back on their heels with that one, if you're talking about direct donations. Likewise, if it's bad to bribe Senator Nelson with a special deal for Nebraska, it's also got to be bad to allow (effectively) corporate bribes by way of campaign contributions.
But then, we're not. Unless my understanding is flawed, we're talking about speech that is actually speech. It's associational speech, but the ruling freed up union speech as much as corporate speech. I can't be enthusiastic about bans on associational speech unless we (somehow) ban all associational political speech-- corporate, union, charity, newspaper, advocacy groups, etc. And that, I think, causes far more problems than the problem it purports to solve, because bear in mind, political parties are themselves associational speech groups in this regard. The Founding Fathers' quaint notions that political parties are Bad Things might be true, but their notion that they can be avoided is, on reflection, kinda dim.
On this side, too, I understand the philosophy and the desire to make sure that concentrations of power don't band together and wield disproportionate influence. But the practicalities of it inevitably boil down to rival interest groups trying to engineer the laws in such a way that they get to speak, and the other group doesn't.
Ambivalence, rather than outrage, is the rule of the day here at Casa Corwin.
I'm sorry, we can't just give you money, but hey, we can spend however many millions we like buying all the add space we feel like. Can we count on you?
Well, I get the frustration, but I have to say that of all the Amendments in the Bill of Rights, the First one has a special place in my heart. Surely you can admit, in your heart of hearts, that putting restrictions on political speech might be contrary to the spirit on that one-- that there's a real issue there, not an obvious solution?
Agreed that restrictions on political speech are antithetical to the purpose of the First Amendment.
What I don't agree with is that the First Amendment has any application to fictional entities that exist solely to make a profit, as opposed to individuals who have an unlimited range of legally-permissible interests and collections of individuals formed for associational, rather than profitmaking, purposes. XOM has precisely one goal: profit-maximization. If it takes any actions that are not directed at that goal, its directors are potentially liable to shareholders.[1]
I don't see that speech in support of such a motive is what the First Amendment was intended to protect.
Alas for your argument, the First Amendment is not a list of what anyone or anything can do. It is a list of what the government cannot do. Among the things the government cannot do is make laws restricting the freedom of speech. Not the speech of individuals, but speech, from any source with any motive.
Since the First Amendment was intended to curb government power, I would have to place that type of political speech within its intents. Motive doesn't enter into it. Motive shouldn't enter into it, because once it does I have no guarantee that the government-- whoever it happens to be that year-- won't decide that my motives aren't pure enough.
As a practical matter, your argument ignores the existence of non-profit corporations. It also ignores news and broadcasting corporations which manage to publish editorials and political commentary all the time. And it ignores other forms of associations which find themselves limited in purpose, such as labor unions.
Government CREATES corporations, and it is Government that requires management to maximize profits on penalty of liability. Therefore, Government can condition that creation as it sees fit, including by restrictions on corporate speech that would be impermissible if applied to individuals. Freedom of Speech isn't implicated, because corporations are creatures of, not parties to, the social contract.
Non-profits: By the same token, government can constitutionally limit the speech of non-profits. However, I think that the protections of Freedom of Association and Freedom to Petition (but not Freedom of Speech) should limit their ability to do so with respect to non-profit corporations formed FOR THE PURPOSE of political speech (the ACLU, Sierra Club and NRA, for instance).
Thus shareholders' speech rights remain unfettered--if they want to spend their money to support the corporation, they can organize a PAC for the purpose; but the corporation cannot fund it directly out of its own coffers.
Labor unions are the same as corporations for this purpose. They are organized to maximize the bargaining power of their membership vis-a-vis their employers, not for political speech.
As for news and broadcasting corporations, there you have the fourth prong of the First Amendment, Freedom of the Press. This is inherently a fuzzier line, as it is certainly conceivable that the corporate owner of a newspaper would direct coverage to be slanted in a way that favors its corporate interests. But it is a line that is well within the capacity of the courts to police. Alternatively, a solution would be to return to the traditional rule: limited-purpose corporations, such that a manufacturing company cannot own a media company; or better-still, limitations on media ownership so that a corporate-controlled newspaper faces sufficient competition from papers that are not so controlled or are controlled by corporations with other interests.
After this, we're going to have to agree to disagree.
But as a matter of law, the First Amendment doesn't contain a clause saying, "except for its own creations." It simply says that the government may not make a law restricting speech, which is exactly what that law was. You're still trying to make a distinction between affected and non-affected entities, where the Constitution makes no such distinction. The First Amendment limits the government, and prevents the government from imposing other limitations.... period.
(You then compound this by making distinctions based not only on type of entity, but also on purpose of entity-- non-profit vs for-profit corporation. This is exactly the kind of slippery slope the First Amendment is supposed to avoid.)
Finally, consider the places that this sort of ability might lead: Can Congress pass laws preventing all corporate entities from publicly criticizing the government? By your theory, yes, of course, since the government "creates" the organizations. That's a mild example of the abuses that inhere in such a philosophy, and I already find the idea repellent.
I find it interesting how you keep managing to respond with something that I'd addressed and then deleted as non-responsive to your prior comment (here, the suggestion that the meaning of the First Amendment is clear-cut and obvious, which if true would mean that laws prohibiting libel, slander and copyright infringement are all unconstitutional).
If the meaning of the First Amendment does not require interpretation, however, then there is no issue here, as Congress did not regulate speech but only the spending of money, which is nowhere mentioned in the First Amendment. That, of course, leads to much more problematic places than your hypothetical.
Yes, Congress can pass laws prohibiting corporate entities from criticizing the government. So what? Individuals retain the right to do so, including individuals whose interests are aligned with the corporation's.
(Your parenthetical manages to misstate my argument and assume your conclusion simultaneously. The right protected is that of individuals to assemble together to more effectively promote their individual political opinions.)
I really have to give Glenn Greenwald props for not taking the liberal line on this one; whatever I might think about his writing style, he always sticks by his principles, even if they result in outcomes that seem to be against his philosophy.
I have a lot of really strong feelings about this one, but Glenn's take on the matter seems more grounded than mine would, because he's a constitutional scholar and I'm not.
All I can say is that I have severe qualms about this decision, and I will probably have more to say on it in an entry later, once I'm less emotional about it.
Well, he even used the same word to describe his feelings as I did-- ambivalent. (Which, despite misuse and abuse, does not mean, "In the middle," but rather, "Attracted to both sides," or at least, "conflicted.")
If nothing else, at least the States would no longer be subjected to unfunded mandates, because no legislature out there would send a Senator back if they voted yes on one. I'm a big fan of reviving federalism.
I've had that thought myself-- California would love it, right now-- but the obvious trade-off is that the social aspect of "states rights" gets a lot stronger. I mean the really pernicious ones like blocking action on civil rights issues.
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Yes.
Actually, a lot of corps make more in profit every day that most families will earn over the course of generations. But money is speech, don'tchaknow. Money really DOES talk.
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I understand the philosophy behind, "money is speech," but I refuse to take that at literal, face value. We tax money, for one thing, while the notion of a tax on speech is both stupid and reprehensible. Unless you're dealing with Ayn Rand, you'll usually set someone back on their heels with that one, if you're talking about direct donations. Likewise, if it's bad to bribe Senator Nelson with a special deal for Nebraska, it's also got to be bad to allow (effectively) corporate bribes by way of campaign contributions.
But then, we're not. Unless my understanding is flawed, we're talking about speech that is actually speech. It's associational speech, but the ruling freed up union speech as much as corporate speech. I can't be enthusiastic about bans on associational speech unless we (somehow) ban all associational political speech-- corporate, union, charity, newspaper, advocacy groups, etc. And that, I think, causes far more problems than the problem it purports to solve, because bear in mind, political parties are themselves associational speech groups in this regard. The Founding Fathers' quaint notions that political parties are Bad Things might be true, but their notion that they can be avoided is, on reflection, kinda dim.
On this side, too, I understand the philosophy and the desire to make sure that concentrations of power don't band together and wield disproportionate influence. But the practicalities of it inevitably boil down to rival interest groups trying to engineer the laws in such a way that they get to speak, and the other group doesn't.
Ambivalence, rather than outrage, is the rule of the day here at Casa Corwin.
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Still, is there a solution, short of banning all associational campaign speech that doesn't pick favorites on a political basis?
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What I don't agree with is that the First Amendment has any application to fictional entities that exist solely to make a profit, as opposed to individuals who have an unlimited range of legally-permissible interests and collections of individuals formed for associational, rather than profitmaking, purposes. XOM has precisely one goal: profit-maximization. If it takes any actions that are not directed at that goal, its directors are potentially liable to shareholders.[1]
I don't see that speech in support of such a motive is what the First Amendment was intended to protect.
[1] Although this is very difficult to establish.
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Since the First Amendment was intended to curb government power, I would have to place that type of political speech within its intents. Motive doesn't enter into it. Motive shouldn't enter into it, because once it does I have no guarantee that the government-- whoever it happens to be that year-- won't decide that my motives aren't pure enough.
As a practical matter, your argument ignores the existence of non-profit corporations. It also ignores news and broadcasting corporations which manage to publish editorials and political commentary all the time. And it ignores other forms of associations which find themselves limited in purpose, such as labor unions.
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Non-profits: By the same token, government can constitutionally limit the speech of non-profits. However, I think that the protections of Freedom of Association and Freedom to Petition (but not Freedom of Speech) should limit their ability to do so with respect to non-profit corporations formed FOR THE PURPOSE of political speech (the ACLU, Sierra Club and NRA, for instance).
Thus shareholders' speech rights remain unfettered--if they want to spend their money to support the corporation, they can organize a PAC for the purpose; but the corporation cannot fund it directly out of its own coffers.
Labor unions are the same as corporations for this purpose. They are organized to maximize the bargaining power of their membership vis-a-vis their employers, not for political speech.
As for news and broadcasting corporations, there you have the fourth prong of the First Amendment, Freedom of the Press. This is inherently a fuzzier line, as it is certainly conceivable that the corporate owner of a newspaper would direct coverage to be slanted in a way that favors its corporate interests. But it is a line that is well within the capacity of the courts to police.
Alternatively, a solution would be to return to the traditional rule: limited-purpose corporations, such that a manufacturing company cannot own a media company; or better-still, limitations on media ownership so that a corporate-controlled newspaper faces sufficient competition from papers that are not so controlled or are controlled by corporations with other interests.
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But as a matter of law, the First Amendment doesn't contain a clause saying, "except for its own creations." It simply says that the government may not make a law restricting speech, which is exactly what that law was. You're still trying to make a distinction between affected and non-affected entities, where the Constitution makes no such distinction. The First Amendment limits the government, and prevents the government from imposing other limitations.... period.
(You then compound this by making distinctions based not only on type of entity, but also on purpose of entity-- non-profit vs for-profit corporation. This is exactly the kind of slippery slope the First Amendment is supposed to avoid.)
Finally, consider the places that this sort of ability might lead: Can Congress pass laws preventing all corporate entities from publicly criticizing the government? By your theory, yes, of course, since the government "creates" the organizations. That's a mild example of the abuses that inhere in such a philosophy, and I already find the idea repellent.
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If the meaning of the First Amendment does not require interpretation, however, then there is no issue here, as Congress did not regulate speech but only the spending of money, which is nowhere mentioned in the First Amendment. That, of course, leads to much more problematic places than your hypothetical.
Yes, Congress can pass laws prohibiting corporate entities from criticizing the government. So what? Individuals retain the right to do so, including individuals whose interests are aligned with the corporation's.
(Your parenthetical manages to misstate my argument and assume your conclusion simultaneously. The right protected is that of individuals to assemble together to more effectively promote their individual political opinions.)
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I have a lot of really strong feelings about this one, but Glenn's take on the matter seems more grounded than mine would, because he's a constitutional scholar and I'm not.
All I can say is that I have severe qualms about this decision, and I will probably have more to say on it in an entry later, once I'm less emotional about it.
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