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A Slippery Slope (Sujatha)

Or maybe we are already at the bottom of the hill, with no further place to go.

I refer, to the Jan 21 decision of the US Supreme Court with regard to election spending by corporate entities. From the Washington Post:

"Chief Justice John G. Roberts Jr. and his conservative colleagues
delivered a seismic jolt Thursday. They overturned two of the court's
past decisions — including one made as recently as six years ago — to
upend federal legislation that says corporations may not use their
profits to support or oppose candidates and to declare unconstitutional
a large portion of the McCain-Feingold campaign finance reform act passed in 2002"

In his 90-page dissent, Justice Stevens avers

"… the majority's "glittering generality" that corporate speech,
like individual speech, is protected under the First Amendment was a
"conceit" that is "not only inaccurate but also inadequate to justify
the court's disposition of this case."

He wrote of his conservative colleagues' "agenda" and said they had
transformed a simple case about whether a conservative group's movie
about Hillary Rodham Clinton violated McCain-Feingold into a constitutional quandary. "Essentially,
five justices were unhappy with the limited nature of the case before
us, so they changed the case to give themselves an opportunity to
change the law."

All  that I  take away from the whole case is that(1)Corporations are currently treated as persons with limited rights regarding free speech (2) The rulling by Roberts, Alito, Scalia, Kennedy and Thomas now removes restrictions on corporations as to how much they may spend to directly influence electoral politics, by extending the earlier limited version of 'free speech'.

Support of sorts for this Free Speech argument comes from some surprising quarters, such as Glenn Greenwald's article 1 and 2 on Salon.com.

His contention is that unlike many who dislike the concept of full personhood with its attendant rights of free speech being extended without restriction to corporations, this ruling also in a different way protects the free speech rights of organizations like the ACLU or Planned Parenthood, which while it may cause havoc in electoral politics by muddying waters (which are hardly crystal-clear to begin with), is the correct stance to take on the issue of free speech and the First Amendment.

There are many skilful dissents to the above opinion, coming from quarters who are severely concerned with the widespreading tentacles of the corporations to influence political discourse now digging in further. Here for example.

The insidious influence of corporations via PACs, 527s and the like have already made inroads into the body politic. So this protest may be much ado about nothing. Maybe this ruling will make it unnecessary for the corporations to hide behind the PAC masks and give openly to candidates of their choice, so then we could see speeches by Senator A,  Aetna-Highmark, or Congresswoman B,  Exxon-Mobil, instead of the silly R or D designation which does nothing to indicate which way their legislative record will lean.

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7 responses to “A Slippery Slope (Sujatha)”

  1. Ruchira

    Thanks, Sujatha. I was hoping that someone would take this one up here. Frankly, with my limited understanding of the law, I have probably not been able to figure out clearly what this decision may entail for the political process. The corporations already wield massive influence. Are they just going to be able to do it without the need for any elaborate cover? Are we at last admitting that instead of small “d” democracy, what we really have is this?
    It is interesting though where Greenwald stands on this one, as does the ACLU. All I can say is that if this is going to screw over the American voters, it will be an equal opportunity thing. The right wing will find out to its dismay that corporate power will run afoul of all ideologies, not just the labor unions and liberal social agenda.
    I love your idea of members of Congress having to indicate corporation names after their own instead of the current system of party affiliation. What a hoot! And so much more honest.

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  2. Sujatha

    If any good does come out of this stance by the Supreme Court, it could arguably be the ‘shining of lights on the cockroaches in the corners’. The next thing to be would be to figure out how to bait and remove them. ( Mustn’t forget the fact that cockroaches are likely to survive much better than humans, should a nuclear apocalypse occur, though!)
    I watched ‘Food Inc.’ the other day, and couldn’t say that I was shocked at the tiny oligarchy that controls the major elements of the processed food market in the US. It was quite an eye-opener. And yet there are the brave souls who strive to take on their frail campaigns against giants like Tyson or Monsanto, just because they do not want what happened to them and their loved ones to be repeated in others’ lives.

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  3. prasad

    I’m glad this has been brought up here!
    – Was there a narrower decision that could have been plausibly reached that would have preserved the finance reforms while allowing that Hillary Clinton movie? It seems to me that such a movie is precisely the sort of thing no-one should dream of restricting.
    – There’s a lot of talk of twenty+ years of precedent and lawmaking being over-turned. Were politics in the 1970s better in relevant respects? What, in practical terms, was gained with these reforms that will now be lost?
    – For me, the most persuasive intuition in favor of the ruling is free association, not the bilge about corporations being people or money being speech. People shouldn’t arbitrarily lose the right to pool their resources together to say something, even if the state recognizes that association and grants it certain privileges. Presumably the state also cannot give a homeowners association a tax break provided only the association gives up a right against warrentless searches at its headquarters. It seems like you shouldn’t be able to “sign away” your fundamental rights at all. The state can doubtless decide to simply not allow the limited liability corporation, but it sounds wrong to make the cost of permit a relinquishment of association rights.
    – I don’t know about political will, but wouldn’t even much stronger limits on corporate election expenses pass constitutional muster? Even individuals cannot give more than 2.3k per election etc. Of course, you should have to “count” any expenses incurred through a corporation against your total contribution limit…

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  4. Sujatha

    If free speech is permitted without restriction to a corporation, the easiest way to legalize gay marriage may be for one gay person to form a corporation and marry(or merge with) another gay-person corporation. Refusal to allow them to recite vows pledging their devotion to the corporate merger in any church/temple/other sanctum could constitute an abrogation of their First Amendment right to express themselves.
    Do you think this could be a possible interpretation that would hold in all states, whether or not they permit gay marriage?

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  5. Ruchira

    I need to know who this corporate “person” is. The employees (some of whom may belong to labor unions), the board of directors, the shareholders or the management? These different groups of “persons” may not have the same agenda. Whose political will or speech is being curtailed or freed by campaign restrictions or the lifting of them?

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  6. Dean C. Rowan

    Corporations and capital–and their “expressions”–are the source of so many of our woes. I’m not at all surprised that our legal system contorts itself to suit their interests. It’s disappointing, though, to read Glenn Greenwald’s apology for those interests in the name of a principle of First Amendment adoration. I wonder if he also opposes laws against insider trading as instances of prohibition of speech.

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  7. narayan

    “members of Congress having to indicate corporation names after their own” How about SC Judges; Thomas used to work for Monsanto.

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