An analysis of the recent Supreme Court ruling

[j_b]

Corpus Ex Machina

Diary of a Mad Law Professor

By Patricia J. Williams

 

This article appeared in the February 15, 2010 edition of The Nation.

January 28, 2010

 

In 1976 the Supreme Court held in Buckley v. Valeo that the expenditure of money is a form of speech protected by the First Amendment. The implications of that case came to an absurd and unfortunate head with the January 21, 2010, decision in Citizens United v. Federal Election Commission. While the Buckley case allowed individuals unlimited spending in pursuit of political ends, Citizens United allows corporations that very same grace, and then some.

 

It is a strange moment in jurisprudence. On the one hand, corporations frequently restrict the expressions of employees or others within their purview: what they may wear, what their T-shirts may say, what political messages they may post on the walls of their cubicles. On the other, the inanimate entity of the corporation itself will now enjoy a range of First Amendment benefits not limited by principles of debate or substance, and it will be constrained only by the size of its treasury in deploying whatever technological bullhorn has the greatest chance of drowning out everyone else.

 

Hence, the questions on many minds are why "freedom" (as in speech) has become the functional equivalent of "expenditure" (as in money) and why on earth corporations are considered "persons" to begin with.

 

First, the Buckley decision has always been controversial, though until now it has been interpreted as allowing expenditures as a subcategory of the expressive power of living individuals only. A corporation, by contrast, is not only not human, it is property. A corporation has no natural life span, it does not vote and many are multinational. Corporations, even nonprofits, are necessarily exclusionary--their very existence premised on bottom-line calculations, competitive power grabs, branding and prospecting for self-promotion. A corporation is obliged by its bylaws to pursue its stated purpose and no other. It doesn't change its nonexistent mind or respond with compassion or feel empathy. Thus, the "corporate citizenship" that the majority in Citizens United touts so blithely is a very different beast from citizenship founded on a constitution of enfranchised individuals and premised on a constituency of souls united in allegiance to an ideal of community, an egalitarianism of society, the mutual shelter of a nation.

 

Second, a word about the history of legal "persons": for more than a hundred years, certain inanimate entities have been granted the status of fictive personhood for limited purposes. The concept grew out of the necessity for businesses to negotiate as well as to be accountable in the marketplace. When, for example, a company manufactures a defective product and sells it to you, you sue the company--not the individual executives or employees (unless there has been some act of extreme wrongdoing on their part). In other words, the company is a kind of juridical stand-in for a person, with that status rooted in the efficiency interests of contract and property law.

 

It takes either the most simple-minded or the most cynical state of mind to conclude from this basis that corporations are entitled to the same panoply of civil and dignitary rights as actual, fully endowed people (as in, "We, the..."). The Citizens United opinion begs the question: for whom is our Bill of Rights? Is a corporation really a "who" or a "whom"? If a public "person" is capacious enough to encompass a privatized "corporate" plurality, then are "We, the people" not thereby reduced by propertied fiefdoms huddled behind a facade of "free" republicanism? If, once upon a time, enfranchisement was calculated according to such diminishing metrics as "three-fifths of a person," does not this ruling confer a similar, if magnifying, mathematical disproportion upon the organizational prostheses we know as corporations?

 

In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called "Transcendental Nonsense," in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked "Where is the corporation?" in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. "Nobody has ever seen a corporation," Cohen pointed out. "What right have we to believe in corporations if we don't believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right...to assume that it travels about from State to State as mortal men travel."

 

Cohen denounced such thinking as essentially "supernatural." He reminded jurists that a corporation does not really have a body with only one fixed head--that it may have a corps of employees in multiple states simultaneously. "When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged," he wrote.

 

In Citizens United, the Roberts Court has deployed just such a delusionary poetic device: "prosopopoeia," or a figure of speech that bestows upon an abstract entity the power of speech. Mssrs. Snap, Crackle and Pop, for example. The Geico gecko. The constructive endowment of speech unto such unendowed figurations is a common imaginative enterprise of the human mind. But the transference of such expressive power is always driven by, and must always be recognized as, a fiction in service to some very specific nonimaginary end. If there is no such grounding in practical purpose, we humanize a golem. We think Mr. Clean is addressing us in real time. We hallucinate.

 

http://www.thenation.com/doc/20100215/williams

[tvashtarkatena]

In other words, keep talking about it until they change their minds? Maybe they'll come to a different conclusion if they just have more flip charts.

 

No.

 

Another case would have to rise up through the courts addressing a similar issue which could then be ruled on, hopefully with a bigger majority. This could be years later.

 

It just seems to me that 5-4 is a flawed way to decide matters this important that then become precedent (which is very difficult to overturn)

 

It may take 20 years to never for a 'similar' case to come along, and no two cases are really all that similar. The court specifically chooses cases to decide the major issues of the day, not to pan them off to the next generation to figure out.

 

The system you suggest would leave the public and political process with a big, ambiguous, and long term 'WTF' floating over their heads a good percentage of the time rather than decisions produced by a functioning branch of government.

[KaskadskyjKozak]

It's not like the Supreme Court just sits around twittling its thumbs waiting for something to come along.

 

Really? I thought it was just like that.

 

The SC only takes cases from lower courts - real cases with a real plaintiff, and only if it wants to. They could review no cases at all if they wanted. Often the court focuses on a certain theme or themes and ignores others.

 

 

[rob]

i think they're busy with orgies. It's a well established fact that they don't wear undies under those robes.

[tvashtarkatena]

Um...yeah, I know how it works. I was implying that the SC has a full docket and therefore limited time/resources duh. Reduxs probably aren't in the public's best interest.

[KaskadskyjKozak]

i think they're busy with orgies. It's a well established fact that they don't wear undies under those robes.

 

Fantasizing about Scalia's little monkey again, eh Rob?

 

 

[KaskadskyjKozak]

Um...yeah, I know how it works. I was implying that the SC has a full docket and therefore limited time/resources duh. Reduxs probably aren't in the public's best interest.

 

They review less cases now than previously (say 30 years ago).

Edited February 5, 2010 by KaskadskyjKozak

[rob]

i think they're busy with orgies. It's a well established fact that they don't wear undies under those robes.

 

Fantasizing about Scalia's little monkey again, eh Rob?

 

 

I have it on authority that Scalia gives it to Ginsberg in the face. And Breyer has to jiggle his balls.

Edited February 5, 2010 by rob

[prole]

They could review no cases at all if they wanted.

 

"That would be sweet..."

 

 

 

[j_b]

It has everything to do with the legal fiction of corporate personhood.

did you read the analysis?

 

Yes, I did read it a couple of times a few days ago when it came out.

 

yeah, my gut tells me microsoft and gm and ge, etc. shouldn't be able to buy whoever they want w/ their speech, but the same gut tells me its b.s. to gag planned parenthood, the aclu, etc. b/c those are corps that are specifically established to magnify the speech of private, concerned citizens

 

perhaps there is a way to distinguish between mega-business corps and non-profit political corps - but then, w/ everythign, there's a thousand loopholes...

 

I would also tend to differentiate between for profit corps and associations that represent people democratically. But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

[Fairweather]

Prole started the thread by claiming this ruling was the worst since Dred Scott v. Sanford. I've already mentioned Kelo, but here are a couple of truly outrageous SCOTUS rulings that reveal the moronic nature of his thesis:

 

Plessy v. Furgeson

Korematsu v. United States

 

 

[prole]

I said, "it's been said that this is the worst case..." There's a difference. It's not a claim I would make.

[tvashtarkatena]

It has everything to do with the legal fiction of corporate personhood.

did you read the analysis?

 

Yes, I did read it a couple of times a few days ago when it came out.

 

yeah, my gut tells me microsoft and gm and ge, etc. shouldn't be able to buy whoever they want w/ their speech, but the same gut tells me its b.s. to gag planned parenthood, the aclu, etc. b/c those are corps that are specifically established to magnify the speech of private, concerned citizens

 

perhaps there is a way to distinguish between mega-business corps and non-profit political corps - but then, w/ everythign, there's a thousand loopholes...

 

I would also tend to differentiate between for profit corps and associations that represent people democratically. But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

??? I believe the values and ethics embodied in the 1st amendment were well served in this ruling. If you think that's 'fetishism', then that's a type of fetishism I can live with.

 

If you think there's a law out there that should be ditched or amended, fine. Last time I checked the legislature handled that stuff, not the judiciary. This judiciary simply ruled that the law in question was unconstitutional, an interpretation I agree with. If the ruling results in an orgy of corporate campaign contribution, might I suggest you lobby congress to pass a more constitutional law to prevent such an outcome. Or would you prefer that an unconstitutional law that obstructs free speech in the form of political advocacy remain in place to 'keep our democracy healthy'?

[tvashtarkatena]

But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

Wouldn't legally loose arguments tend to, you know, violate the rule of law, which is supposed to 'represent our values and ethics'? You're acting like the SC squeeked this one by 'on a technicality'. A law that denies a non-profit from running a political ad? Hardly a 'nit' issue.

[ivan]

but its so much eassssssssssier to have 9 folks make the law than 536!

[prole]

But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

Wouldn't legally loose arguments tend to, you know, violate the rule of law, which is supposed to 'represent our values and ethics'? You're acting like the SC squeeked this one by 'on a technicality'. A law that denies a non-profit from running a political ad? Hardly a 'nit' issue.

 

Justices are expected to understand and rule in part based on the real-world implications of their rulings, as you note above. But you continue to advance your opinion on the ruling from the narrowest possible reading: non-profit denied running political ad. The justices involved were certainly more adept at seeing (or at least admitting) the big picture. From the article above that you didn't read:

 

The crux of the disagreement between the majority opinion by Justice Anthony Kennedy and the dissenting opinion by Justice John Paul Stevens was whether the statutory restriction on corporate spending in federal elections “furthered a compelling governmental interest.” Both opinions acknowledged that preventing corruption, or the appearance of corruption, of public officials was a sufficiently compelling interest.

 

But the majority opinion expressed the view that only “quid pro quo” corruption, almost the equivalent of bribery, would constitute a sufficient governmental interest to sustain the prohibition against corporate spending. The majority concluded that independent and uncoordinated spending by corporations to support or defeat candidates “[does] not lead to, or create the appearance of, quid pro quo corruption.”

 

Justice Stevens sharply and persuasively disagreed with the majority’s crabbed curtailment of the government’s interest in curbing corruption:

 

Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA (Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold), a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs -- and which amply supported Congress’ determination to target a limited set of especially destructive practices.

 

At its essence, the court’s 176 pages of opinions turned on that disagreement between the majority and the dissenters on whether unlimited corporate spending on federal elections could lead to corruption or an appearance of corruption, which was the decisive legal issue in the case. On that critical question, the argument of the court’s conservative majority appears to be untenable.-- again.

 

 

Edited February 6, 2010 by prole

[ivan]

if yer a sad-ack like me n' have nothing better to do on a friday night, bill moyer's doing an hour show on this issue currently on libtard-tv (pbs)

[Coldfinger]

Geez man, you're kinda wordy for one of those Easter Island stoneheads, and most folks in Wyo. or Yakavegas.

 

Seems like the SC gave the green light to the use of surrogates, i.e. Swift Boating. Just outsource the words you can't say yourself out in the open air (even if you're an avatar or fictional individual).

 

GN is we're talking this one out well, it matters.

Edited February 6, 2010 by Coldfinger

[j_b]

??? I believe the values and ethics embodied in the 1st amendment were well served in this ruling. If you think that's 'fetishism', then that's a type of fetishism I can live with.

 

If you think there's a law out there that should be ditched or amended, fine. Last time I checked the legislature handled that stuff, not the judiciary. This judiciary simply ruled that the law in question was unconstitutional, an interpretation I agree with. If the ruling results in an orgy of corporate campaign contribution, might I suggest you lobby congress to pass a more constitutional law to prevent such an outcome. Or would you prefer that an unconstitutional law that obstructs free speech in the form of political advocacy remain in place to 'keep our democracy healthy'?

 

It's fetishism insofar you invest meaning in the constitution that isn't there. It was written when human societies and language itself were different and nobody had a crystal ball. To presume the original intent was to give human rights to corporations so they could overwhelm popular speech just doesn't follow from the evidence. 100+ years of legal fiction to impose corporate personhood is nothing more than that.

[j_b]

But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

Wouldn't legally loose arguments tend to, you know, violate the rule of law, which is supposed to 'represent our values and ethics'? You're acting like the SC squeeked this one by 'on a technicality'. A law that denies a non-profit from running a political ad? Hardly a 'nit' issue.

 

When the rule of law violates basic ethics (corporate money swamping out the speech of the people and corrupting pols in this case) there isn't any point in trying to have a legally consistent argument.

[Fairweather]

But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

Wouldn't legally loose arguments tend to, you know, violate the rule of law, which is supposed to 'represent our values and ethics'? You're acting like the SC squeeked this one by 'on a technicality'. A law that denies a non-profit from running a political ad? Hardly a 'nit' issue.

 

When the rule of law violates basic ethics (corporate money swamping out the speech of the people and corrupting pols in this case) there isn't any point in trying to have a legally consistent argument.

 

Now that we're clear on where you're coming from, you may kindly abstain from selectively playing the constitution card in future discussions.

[j_b]

I'll keep "playing the constitution card" as long as you keep cheering those who trample the principles you claim to adore like "freedom"

 

and, you haven't shown how it was possible to have a legally consistent argument when the rule of law was unethical.

[rob]

I've got to hand it to you, I've been trying moderately hard to derail this thread and you guys are sticking to it.

[Stonehead]

But, I also don't consider having a completely legally tight argument as critical to this discussion. Pushing fetishism of the law to its most absurd end doesn't sit too well with me. The law is supposed to represent our values and ethics and when it doesn't work it should be ditched or amended accordingly.

 

Wouldn't legally loose arguments tend to, you know, violate the rule of law, which is supposed to 'represent our values and ethics'? You're acting like the SC squeeked this one by 'on a technicality'. A law that denies a non-profit from running a political ad? Hardly a 'nit' issue.

 

When the rule of law violates basic ethics (corporate money swamping out the speech of the people and corrupting pols in this case) there isn't any point in trying to have a legally consistent argument.

 

I could just as well be reading from the same "book" that you are reading, perhaps not on the same page, but essentially the same one regarding fetishism of the law or the elevation of law to a state of near godlike infallibility. The specifics of this case read almost as an academic exercise. I’d wager that perhaps the central issue of today is the public’s loss of faith and trust in role of government to solve problems and that as we proceed into the near future the erosion of trust will continue on both sides of the political spectrum.

 

At the center of our government lies a bankrupt institution: Congress. Not financially bankrupt, at least not yet, but politically bankrupt. Bush v. Gore notwithstanding, Americans' faith in the Supreme Court remains extraordinarily high--76 percent have a fair or great deal of "trust and confidence" in the Court. Their faith in the presidency is also high--61 percent.

 

But consistently and increasingly over the past decade, faith in Congress has collapsed--slowly, and then all at once. Today it is at a record low. Just 45 percent of Americans have "trust and confidence" in Congress; just 25 percent approve of how Congress is handling its job. A higher percentage of Americans likely supported the British Crown at the time of the Revolution than support our Congress today.

 

The source of America's cynicism is not hard to find. Americans despise the inauthentic. Gregory House, of the eponymous TV medical drama, is a hero not because he is nice (he isn't) but because he is true. Tiger Woods is a disappointment not because he is evil (he isn't) but because he proved false. We may want peace and prosperity, but most would settle for simple integrity. Yet the single attribute least attributed to Congress, at least in the minds of the vast majority of Americans, is just that: integrity. And this is because most believe our Congress is a simple pretense. That rather than being, as our framers promised, an institution "dependent on the People," the institution has developed a pathological dependence on campaign cash. The US Congress has become the Fundraising Congress. And it answers--as Republican and Democratic presidents alike have discovered--not to the People, and not even to the president, but increasingly to the relatively small mix of interests that fund the key races that determine which party will be in power.

 

This is corruption. Not the corruption of bribes, or of any other crime known to Title 18 of the US Code. Instead, it is a corruption of the faith Americans have in this core institution of our democracy. The vast majority of Americans believe money buys results in Congress (88 percent in a recent California poll). And whether that belief is true or not, the damage is the same. The democracy is feigned. A feigned democracy breeds cynicism. Cynicism leads to disengagement. Disengagement leaves the fox guarding the henhouse.

How to Get Our Democracy Back--Lessig speaks of the issue raised by this case

[tvashtarkatena]

 

When the rule of law violates basic ethics (corporate money swamping out the speech of the people and corrupting pols in this case) there isn't any point in trying to have a legally consistent argument.

 

Yes, this is a special time, an emergency, that requires special powers and methods...

 

Cheney couldn't have said it better.

 

Difficult times are precisely when we should trust our institutions, most particularly the constitution, democratic process, and the rule of law, the most. If not, anything goes.

 

We've all seen where that can take us.

 

In any situation, you must still answer the same question: who decides?

 

And what, exactly, are you suggesting be done, here? Yeah, we might have an issue of too much corporate influence over government after this ruling. How would you suggest we go forward in correcting that problem? Kvetching about the SC ruling, while a valuable discussion and airing of grievances, probably isn't the most fertile option. That ship has left the dock.

Edited February 6, 2010 by tvashtarkatena