Money Isn’t Speech and Corporations Aren’t People: David Kairys on Slate.com
Another good look at the recent, disreputable “Citizens United” decision– a decision which, polls have lately shown, is opposed by a significant majority of the American people.
******************
Money Isn’t Speech and Corporations Aren’t People
The misguided theories behind the Supreme Court’s ruling on campaign finance reform.
By David Kairys
Slate.com, Jan. 22, 2010
Go back almost a century, to the time when the modern corporation was created, and you’ll find laws that prohibit or limit the use of corporate money in elections. And yet this week, a 5-4 Supreme Court struck down the limits that Congress passed in 2002 in this tradition in the case Citizens United v. FEC.
The majority’s ruling unleashes a new wave of campaign cash and adds to the already considerable power of corporations. The court’s main rationale is that limits on using corporate treasuries for campaigns are a “classic example of censorship,” as Justice Anthony Kennedy wrote for the majority. To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the “quantity of expression”—the amounts of money—can’t be limited.
But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn’t apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being “disruptive” and posing an “inconvenience” to others. In other words, in the court’s view, some people’s money is speech; others’ money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers.
The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend, on campaigns. It also doesn’t make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn’t make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or “nonspeech”) elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to “pure” speech, “compelling” government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a “manner” of speaking that the court has said usually can be “reasonably regulated.”
The other basic theory supporting the ruling in Citizens United—the court’s claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.
Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say “GM was embarrassed today”—they obviously don’t and shouldn’t have all the rights of people. For example, they don’t have the right to vote.
The other basic theory supporting the ruling in Citizens United—the court’s claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.
Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say “GM was embarrassed today”—they obviously don’t and shouldn’t have all the rights of people. For example, they don’t have the right to vote.
In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don’t function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court’s ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation’s political portfolio?
The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.
Both of these theories—that money is speech and that corporations are people—have an easier time than they should in courts and with the public, too, because they are posed as counters to censorship. Many of us, including me, haven’t seen a free-speech argument we don’t like, at least initially.
But some perspective: We limit speech—when it has nothing to do with wealthy people spending money—in many ways. (It wasn’t protected at all until the mid-1930s.) You famously can’t shout fire in a theater. You not-so-famously can’t break the theater’s rules, including rules about speaking, because you don’t really have any First Amendment rights in a privately owned theater or at work. The First Amendment limits only government. And even where it is fully protected, free speech has not been absolute; it’s subject to regulation when it undermines basic societal interests and functions, like voting and democracy. In the last few decades, the conservative justices dominating the court have also limited speech rights for demonstrators, students, and whistle blowers. They have restricted speech at shopping malls and transit terminals. Taken as a whole, the conservative court’s First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.
In a largely unnoticed rewriting of speech law, the conservative justices have applied their theories and doctrines inconsistently and selectively, as they have money-is-speech. Some of the conservatives’ recent innovations would seem to validate campaign finance laws. The “secondary effects” doctrine, for example, allows government to restrict speech if government can suggest a general, non-speech-related purpose, even if the real purpose is speech-related. The court ignored this doctrine in Citizens’ United and other campaign finance cases—even though campaign finance reform is aimed not at speech itself, but at large amounts of money that skew, corrupt, and undermine elections.
The court’s invalidation of campaign finance reforms over the last few decades isn’t about censorship or suppressed speakers or viewpoints. At its core, this line of cases is about dominance of the political and electoral system by wealthy people and corporations and about legitimizing a political and electoral system that is unrepresentative, money-driven, corrupt, outmoded, and dysfunctional. Wealthy people and corporate managers shouldn’t dominate politics or have more and better speech rights than the rest of us. That seems like an obvious truth. And yet the Supreme Court’s recent decisions move us away from it.
February 21st, 2010 at 12:58 pm
Added to the post could be mention of SLAPP lawsuits:
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
in which corporate money is used to silence actual free speech by natural persons through intimidation.
If one asks why the capacity of the corporate form to amass money beyond that of an individual matters, SLAPP’s are one part of the answer. So not only should there be a problem with defining cash as speech, we should also focus on the use of corporate cash to crush speech.
February 21st, 2010 at 1:25 pm
I agree that the contri-bribe system should be criminal; certainly not sanctioned by ANY court.
On the other hand, since the people who want money however they can get it far outnumber those who control it in the main, how long would it be when the individual ‘gimme mores’ would vote themselves the redistribution of wealth ’til ‘nobody’ would have ‘nothing’ ? ?
Are we to rely on the wisdom and restraint of the boob tube masses ?
So, is this really a matter that one man one vote can really cope with ?
February 21st, 2010 at 1:47 pm
Kennedy gets to have his name on this decision because his name is on the majority position but we should give credit where credit is due, to the un-honorable Justice Roberts. If we can’t find a way to get this corporate shill, Justice Roberts, off the bench I fear that there is nothing we can do to save the Republic. All of the Roberts court decisions have been in favor of corporate and business interest over the interests of “the people”. I think that all the energy trying to find a political solution to the citizens’ united travesty is wasted energy. I also think all of the people’s political energy and resources should be focused at restoring the court to be a court that will work for the people of these United States.
February 21st, 2010 at 4:38 pm
How opposition to the use of corporate general funds to buy elections and legislation, and to intimidate (human) citizens from their sppeech rights is somehow a move to redistribute wealth…?
February 21st, 2010 at 8:01 pm
“the conservative justices who had emphatically embraced the money-is-speech principle didn’t apply it to money solicited by speakers of ordinary means” ~ David Kairys
or, said another way, the fact IS that
“there are two “interpretations” for every law; one for the very rich, and one for the rest of us” ~ Joe Stack (1956-2010)
“At its core, [it] is about dominance of the political and electoral system by wealthy people and corporations and about legitimizing a political and electoral system that is unrepresentative, money-driven, corrupt, outmoded, and dysfunctional.” ~ David Kairys
this too has previously been said:
“When plunder becomes a way of life for a group of men, living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.” ~ Frederic Bastiat, (1801-1850)
February 21st, 2010 at 9:53 pm
I think Jim Z’s lone comment of the ‘fiscal tight-rope’ thread is short and to the point and probably has not been followed as it seems nuff said.
But Jim, opposition to the recent Supreme Court decision -I would like to join in- is NOT a move to redistribute wealth. If it is, I don’t see it.
But my question is not to be contrary to the current necessary reaction to the current extremes but to ask for acknowledgement that if the politicians
had to respond to strictly a one man- one vote situation how long could that go on before the wealthy would have to resort to tyranny ?
Your knowledge is appreciated but sometimes is seems liberalism has affected your view, at least as expressed, beyond the bounds of common sense. I guess this is the nature of ‘reaction’ whether liberal OR conservative.
Not a criticism . . just trying to process the views expressed.
February 21st, 2010 at 9:58 pm
“When plunder becomes a way of life for a group of men, living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.” ~ Frederic Bastiat, (1801-1850
Wasn’t this the English rule that prompted the founding of he United States of America?
February 21st, 2010 at 11:52 pm
If facts tend to lean liberal, so be it. The most prominent redistribution of wealth that has occurred in the US in the past quarter century, or in my lifetime, has been in an upward direction. That is, two and a half trillion dollars of payroll taxes paid by working Americans into the Social Security Trust Fund since 1983 in order to provide for these workers’ own retirement, this money borrowed by the general fund ostensibly to keep the operations of government running, fleeced by the wealthiest in the form of the Bush-II tax cuts. These funds now sit in the portfolios and net worth statements of individuals in the top couple of percent of wealth in the US. They now, through their agents in the Republican party, are in a campaign to convince the media, the Congress and ordinary Americans, that our nation “cannot afford” its commitments to seniors on the verge of retiring. David R., don’t pretend that you cannot follow the money, because I have repeated these facts too many times for you not to understand them by now. You may plead wilfull ignorance, but not ignorance. No, American plunder in our lifetimes has not been as Bastiat (whom I assure you I have read) imagined. It has been rather, by those at the pinnacle or priviledge who wave his books in our faces as justification for their enrichment from our money.
There is no more hideous or shameful truth in our country in this era than this swindle of working Americans by this economic elite. To prate on about some fear of the poor dragging down the rich is so far from actual American experience as to be worse than cartoonish. Look reality in the face for once.
February 22nd, 2010 at 7:13 pm
If you come back to this thread, Jim, since you have this information, I am assuming These Facts, I would appreciate a little more before I go to my Congressman on this Social Security fund.
People who are paid wages and salaries pay the tax
(on income up to $ __________ per year)
Social Security began in year ?_____ at ?% of wages and salaries up to ?
The payout from this ‘fund’ is for:
Old age retirement beginning now at age 62 ?
Children of a widowed parent
Disability ?
Other ?
I will follow up on this because as you put it it IS obscene and criminal in nature. However I want the actual facts altogether before I go further.
Is there a web site where it has been all put together in one place ?
I think the ‘liberal’ in you is mad because of who has the money at the expense of who ?
The conservative in me may get angry if we have a serious problem because the money is not where it is supposed to be.
Same problem but possibly two different views.
February 22nd, 2010 at 7:17 pm
Where did that smiley face come from ? I don’t even know how those thiings are put in the text./ That typo gremlin must be trying something new.
February 23rd, 2010 at 5:29 pm
Two think tanks’ websites that contain well-researched information about Social Security are:
Center on Budget and Policy Priorities
and
The Century Foundation
For a recent short piece, here is Paul Krugman:
http://krugman.blogs.nytimes.com/2008/03/28/about-the-social-security-trust-fund/
The 2002 piece (his own) that Krugmman links to in this column is also well done and I recommend it – don’t skip over it.
Believe me, your point about the money not being where it is supposed to be is no different whatsoever from the points that I have been making. It is supposed to be invested in such a way that it is safe for its intended purpose when the time comes to draw it down; it is, for all practical purposes in the pockets of GW Bush’s political base, which he himself called “The Haves and the Have Mores.” It is the latter groups who are screaming that our nation cannot afford for the general fund to repay its debts that it owes to the Social Security Trust Fund.
Since 1935, the law has required that all surplus SSTrust Fund balances be invested in the safest securities in human history, US Treasury Bonds (in fact Treasuries define the benchmark of safety in the field of finance). Only pure politics coming from the Right would conceivably make these anything but the most appropriate place to park these funds.
SS began in 1935. The first pension payouts ocurred in 1941. The three main categories are pension, disability and survivor benefits. About a third of check recipients are in the survivor and disability categories, the other two-thirds pension. The present wage cap (2010) is $106,100 – that is, all wages of current workers above that go payroll-tax-free (so the payroll tax is overwhelming paid by wager-earners, not the upper classes. The payroll tax is 12.4% for Social Security (half each from employer and employee). Full pension benefits begin at age 66, with heavily discounted benefits available beginning at age 62.
The political trickery that has been in effect for some decades was to begin considering the SSTrust Fund and the Gen. Fund as a “unified budget,” as if there were no difference between the two – “it’s all the government.” Nothing is further from the truth. The side of the government created to provide Social Security has loaned all of its surplus balances to the side of government that wages the wars and gives agricultural subsidies to obscenely wealthy farm owners (to use two examples), i.e., the general operations of government. This is done by the SSTrust Fund using its surplus cash to purchase Treasury Bonds which are issued by the Treasury (General Fund), ands which the SST keeps in its portfolio. When the Boomers begin to retire, these bonds will begin to be redeemed, and the Gen. Fund is required to repay the borrowed money. Since the Gen. Fund has been depleted by (a) the Bush tax cuts for the wealthy, and (b) multiple wars both on- and off- budget, the money “isn’t there” to repay these loans (presently at around $2.6 trillion). The political Right wants you to believe that repaying these bonds is somehow a bad thing; they falsely claim that “our children & grandchildren” will be subsidizing undeserving greedy retirees over the coming decades.
In fact the opposite is true; Social Security is the part of the government that is solvent, the general fund is the part that is bankrupt. The boomers (workers since 1983) have “over paid” FICA payroll taxes into the SST for the past 27 years so that the money will be there upon retirement. Rather than being a battle between generations, it is in fact a battle between economic classes wherein money from working stiffs’ pockets flowed right into the pockets of Bush’s “haves and have mores” in the form of high-end tax cuts that we couldn’t afford, had no positive economic effect, and polls at the time showed that the large majority of Americans didn’t want.
I do not defend the working class as some sort of ideological reaction; I point out exactly where the money came from and where it now sits (“follow the money”). I let the fiscal, economic and fiancial facts speak for themselves.
February 23rd, 2010 at 5:42 pm
From Krugman’s piece, his link to his own prior piece, seems not to work.
Here is one of many columns that Krugman has written on the subject:
http://www.rollingstone.com/politics/story/6822964/the_fake_crisis/
February 23rd, 2010 at 8:14 pm
“I let the fiscal, economic and fiancial facts speak for themselves”
That is the language I can and am willing to compute.
If and when it all comes together (for me) and it is as you say,
my own Senators and Representative are going to have to acknowledge
reality or admit openly that they won’t.
A question, though:
If they say to me
“We did not do it, but yes, that’s the case. So now, tell me, since the Treasury is broke, where do you propose we ‘find’ the money?”
Where do you think, Jim, I will look for the answer ?
February 23rd, 2010 at 8:46 pm
Clearly, the first step is to reverse the completely unjustified Bush tax cuts. Return to the rate structures that Reagan and Clinton had in place.
In any case, these obligations are just as ironclad as any other legal obligation. The government owes the money to the bondholder (the Trust Fund); repayment is not optional. Some right-wing talking heads have actually hinted at deliberately defaulting on US Treasury Bonds, for the political purpose of killing Social Security. Now there’s a patriotic American talking.