Worst SCOTUS Decision of the Decade, Hard to Top


#61

[QUOTE=Yotie;217695]eh, we’re a dying empire anyway. exhibiting all the right traits. Won’t be too much longer now.[/QUOTE]

The United States: the Empire That Wasn’t


#62

The United States: The imperial state that wouldn’t admit it was an empire by different means


#63

Do you admit the possibility of a substantive, constitutional progressive critique of the decision? Or are all progressive critiques hypocritical by their very nature?

I believe that any progressive effort to restrict freedom of expression is hypocritical by its very nature. If there are criticisms of the decision that do not seek to restrict free expression as their alternative, those might not be hypocritical.

All the arguments about a supposedly disproportionate ability to reach a wider audience do not address the fundamental underlying principle that any selective restrictions on free expression have an intrinsic potential to be arbitrary, expanding, and authoritarian. That’s why I reject the attempts to dress it up with excuses – because it is always possible to concoct an excuse that makes a particular restriction seem justifiable to a group of people who don’t agree with the substance of the target’s political beliefs. Censorship of “communists” was presented as a threat to the security of the country in the McCarthy era, censorship of conservatives on college campuses is presented as necessary to maintain “diversity” by stopping “hate speech”, and now censorship of corporations is presented as necessary to prevent them from mind-controlling the masses. But excuses do not add up to principle, so I see those who embrace them for temporary convenience as betraying principles.

Also, the idea that corporate free speech combined with money gives them absolute ability to control public opinion is ridiculous. Exxon had billions, that didn’t stop them from being widely detested after the Exxon Valdez disaster. Enron, Nike, and Halliburton are additional examples of corporations that have been widely demonized in spite of their public relations efforts. The ability of a speaker to buy air time does NOT in fact mean that everyone will believe their message, or else Ross Perot would have been elected president in 1992.

Also, it is just stupid to believe that corporations are monolithic and that allowing corporations to speak on political issues will result in corporations controlling politics. Some corporations will speak on one side, some on others. Unions will speak also. So will 501©(3) and other types of politically engaged non-profit organizations, more of which are progressive than are conservative (and few are moderate).

Debaters keep telling us that the best response to an argument is to make a better argument. It seems that some of them don’t really believe that when it comes to real world speech, so they want to stop certain groups from even being allowed to speak at all.

And yes, that’s hypocritical. The better response is to just make a better argument. Efforts to restrict speech from others indicates a lack of confidence in the strength of one’s own argument.


#64

[QUOTE=JPS;217700]I believe that any progressive effort to restrict freedom of expression is hypocritical by its very nature. If there are criticisms of the decision that do not seek to restrict free expression as their alternative, those might not be hypocritical.

All the arguments about a supposedly disproportionate ability to reach a wider audience do not address the fundamental underlying principle that any selective restrictions on free expression have an intrinsic potential to be arbitrary, expanding, and authoritarian. That’s why I reject the attempts to dress it up with excuses – because it is always possible to concoct an excuse that makes a particular restriction seem justifiable to a group of people who don’t agree with the substance of the target’s political beliefs. Censorship of “communists” was presented as a threat to the security of the country in the McCarthy era, censorship of conservatives on college campuses is presented as necessary to maintain “diversity” by stopping “hate speech”, and now censorship of corporations is presented as necessary to prevent them from mind-controlling the masses. But excuses do not add up to principle, so I see those who embrace them for temporary convenience as betraying principles.

Also, the idea that corporate free speech combined with money gives them absolute ability to control public opinion is ridiculous. Exxon had billions, that didn’t stop them from being widely detested after the Exxon Valdez disaster. Enron, Nike, and Halliburton are additional examples of corporations that have been widely demonized in spite of their public relations efforts. The ability of a speaker to buy air time does NOT in fact mean that everyone will believe their message, or else Ross Perot would have been elected president in 1992.

Also, it is just stupid to believe that corporations are monolithic and that allowing corporations to speak on political issues will result in corporations controlling politics. Some corporations will speak on one side, some on others. Unions will speak also. So will 501©(3) and other types of politically engaged non-profit organizations, more of which are progressive than are conservative (and few are moderate).

Debaters keep telling us that the best response to an argument is to make a better argument. It seems that some of them don’t really believe that when it comes to real world speech, so they want to stop certain groups from even being allowed to speak at all.

And yes, that’s hypocritical. The better response is to just make a better argument. Efforts to restrict speech from others indicates a lack of confidence in the strength of one’s own argument.[/QUOTE]

So would you advocate completely lifting the restrictions on campaign finance? Completely throw open the door to soft money and allow unrestricted lobbying? I hope the answer is no. Since some restrictions on how money can be spend on elections are permissible, the issue then becomes a matter of degree rather than one of principle.

Also, your insistence that all we need to do is “make a better argument” is naive. Even a passing familiarity with American politics shows that Americans (or really, people generally) do not respond to the best argument. How many people think Obama is not a US citizen or a communist or a Muslim sleeper agent? How many people think Bush was responsible for 9/11?

Your argument that Exxon or Nike couldn’t improve their public image with all the money at their disposal sidesteps the real problem of removing the restrictions on how corporations can donate or spend money. The threat is not that they can use their vast amounts of money to buy political ad time to persuade the American public. The threat is that they buy the politicians themselves. It doesn’t matter how much the public hates Exxon as long as congress is still in its pocket. It doesn’t matter how much the public distrusts insurance companies as long as they can still get congress to block the passage of health care reform. The problem is that what you and I think will become increasingly irrelevant in an age when politicians owe their election to the corporations who bought ads for them as much as the people who voted for them.


#65

[QUOTE=JPS;217700]

All the arguments about a supposedly disproportionate ability to reach a wider audience do not address the fundamental underlying principle that any selective restrictions on free expression have an intrinsic potential to be arbitrary, expanding, and authoritarian. That’s why I reject the attempts to dress it up with excuses – because it is always possible to concoct an excuse that makes a particular restriction seem justifiable to a group of people who don’t agree with the substance of the target’s political beliefs. Censorship of “communists” was presented as a threat to the security of the country in the McCarthy era, censorship of conservatives on college campuses is presented as necessary to maintain “diversity” by stopping “hate speech”, and now censorship of corporations is presented as necessary to prevent them from mind-controlling the masses. But excuses do not add up to principle, so I see those who embrace them for temporary convenience as betraying principles.

Also, the idea that corporate free speech combined with money gives them absolute ability to control public opinion is ridiculous. Exxon had billions, that didn’t stop them from being widely detested after the Exxon Valdez disaster. Enron, Nike, and Halliburton are additional examples of corporations that have been widely demonized in spite of their public relations efforts. The ability of a speaker to buy air time does NOT in fact mean that everyone will believe their message, or else Ross Perot would have been elected president in 1992.

Also, it is just stupid to believe that corporations are monolithic and that allowing corporations to speak on political issues will result in corporations controlling politics. Some corporations will speak on one side, some on others. Unions will speak also. So will 501©(3) and other types of politically engaged non-profit organizations, more of which are progressive than are conservative (and few are moderate).
[/QUOTE]

Do you feel that alien and sedition laws are authoritarian and arbitrary? Should we lift the restrictions on Church’s to make overt political endorsements even though it is prohibited by their 501c4 status? Or are corporations the only NON-POLITICAL entity which you think deserves the right to influence elections.

But then again I guess the McCain-Feingold act was passed in 2002 and perhaps thats why Bush was able to torture, indefinently detain, extraordinary rendition, invade and occupy nations on false pretenses, illegally wiretap Americans, build large scale detention centers, and leak the identity of CIA agents who disagreed with him. Or is it more likely that the corporate donations from the likes of Enron, Halliburton, Raytheon etc. helped him get elected.


#66

dude, it’s pointless. Some people oppose and some people are just say no. There is a difference.


#67

Jason will probably ignore me again since I am trying to make measured arguments, but I’ll try.

Jason, what if I concede that restrictions may tend toward some degree of arbitrary, even authoritarian, and has some tendency to expand, but countervailing forces work against that expansion (in this case, existing corporate power pushes back when there are restrictions). So there is a cost.

But there can also be a benefit to regulation of corporate speech. Namely, when well-funded voices are limited, it opens a political space at a grassroots level. You may contest that this is not true- and feel free- but I’d appreciate if you could engage also in the alternative- if a reader doesn’t buy your argument against this, then how do you resolve the right policy?

It seems to me to be balancing interests. Free speech would tend against government intrusion, but also permits some private parties to be particularly dominant. Either government crowds out part of civil society, or powerful interests not limited by government crowd out part of civil society. The policy judgment then revolves around whether government or corporate influence is more dangerous, which one is likely to be more intrusive, and other comparisons like that. It seems that reasonable people could disagree without hypocrisy at this point. Jason- please- explain why not. If your position rests on your response to my claim that there is benefit from regulating corporate speech, please say so, that way I can understand your argument and best engage it.

Thanks.


#68

[QUOTE=Mike_Cal’06;217705]

But there can also be a benefit to regulation of corporate speech. Namely, when well-funded voices are limited, it opens a political space at a grassroots level. You may contest that this is not true- and feel free- but I’d appreciate if you could engage also in the alternative- if a reader doesn’t buy your argument against this, then how do you resolve the right policy?

.[/QUOTE]

The grassroots are largely excluded from this political avenue anyways. Typically, grassroots movements are poorly funded and rarely purchase ads for political candidates. Although, the non-profit industry has more than $1.5 trillion invested in it, those institutions are not exactly grassroots. They are typically run by people who come from relative class, race, and educational privilege. Usually, they are run from an elitist top-down approach that categorically excludes grassroots leadership. Although, the concern is valid. For instance, Chevron regularly funnels money into local candidates in Richmond to control policy surrounding their refinery there. Organizations like Communities for a Better Environment, West County Toxic Coalition, etc., which is a multi-racial coalition grassroots movement surely can’t compete against the world’s 5th largest corporation and their record profits.


#69

First, fundamental rights like free speech are not properly submitted to a balancing test unless in conflict with other rights that are fundamental. Even if it were conceded that corporate speech is weighty, there is nothing about free speech by corporations that actually suppresses countervailing speech and thus puts corporate speech in tension with anyone else’s fundamental rights. Thus, balancing is the wrong approach.

Second, the claim that suppressing corporate speech is necessary or desirable in order to open up space for speech at the grassroots level is rhetorical flourish, not argument. I can think of no reason that one actor speaking actually prevents another actor from also speaking, and without that being shown, there is no evidence that the grassroots level is not already speaking. Indeed, given the proliferation of grassroots protest movements all across the political spectrum, from “tea parties” to anti-war protests, there is no evidence that speech arising from the grassroots level is endangered.

I would also caution against confusing openness with effectiveness. The guarantee of free speech for those at the so-called “grass roots” is a guarantee of the right to speak, not a guarantee of the right to speak in the same amount, at the same volume, or with the same impact or influence as anyone else. More succinctly, the right to argue is not the right to win the argument. Those seeking to suppress speech from actors they disagree with or find themselves overmatched by often confuse the right to speak with an illusory right to win every argument. That is a fundamental misunderstanding of what free speech is all about. Suppression of corporate speech cannot be justified merely by the fear that corporations might actually prevail in an argument against self-appointed avatars of the “grassroots”.

The same cuts the other way, also contradicting a key claim of the pro-suppression argument. The idea that allowing corporations to speak, and even to purchase a great deal of speech, will give those corporations transcendent and overwhelming influence that cannot be matched by contrary speech is contrary to logic and experience. The ability to speak does not always translate into the ability to persuade. People often hear arguments that they reject. People would be free to reject arguments made by corporations just as much as they are free to reject arguments made by non-profits and individuals which the pro-suppression side here does not view as dangerous.

Furthermore, even if there was some magically greater influence to corporate speech, even that would not be a reason to suppress it. Speech should not be suppressed merely because it is successful, unless we want to set a standard that allows us to censor any argument that contradicts with and therefore endangers a preset set of dogmas. The purpose of political speech is to contribute to a diverse foment, not a preselected set of “preferred” or “required” thoughts.

Free speech is a fundamental right, not an instrumental tool in service of a pre-selected ideology. Its suppression cannot be well-justified either by the claim that it damages interests other than fundamental rights not can it be justified by the fact that it’s use may run contrary to the interests of one or more countervailing ideologies. If free speech is to have any real meaning, it must be construed as broadly as possible and any and all attempts to suppress it subjected to the strictest and most skeptical scrutiny.


#70

Mike, corporate power cannot push back against expansion of suppression if corporations are not allowed to even speak on the issues. In fact, one of the many reasons corporations require free speech rights is because they are subject to government regulations that constrain them. to deny them the right to speak is to severely tilt the scales in a way that is manifestly unfair in both intention and effect.


#71

Zach, I am opposed to all restrictions on the speech of actors that are affected by government policies. To the extent that corporations are the target of much government policy, they should be allowed to speak in the debates regarding those policies, including in the wider public forum. Basically, I do not accept your premise that a corporation is entirely external to the political process. To the extent that foreigners are affected by US policies around the world, I think they also should be allowed to have a voice in the wider public debate about those policies. Religious associations, I don’t know what I think about that. But I guess I think they should be allowed to speak as well, since their rights and worldviews are implicated by government policy as much as any environmentalist group.

And the insertion of complaints about torture, etc, is just an inflammatory diversion that is unworthy. If that is the direction intended for the discussion, I refuse. I don’t want to participate in a discussion where the presumption taken from the fact that I disagree with you is that I am complicit in torture, etc. That’s just unfair, insulting, and pointlessly inflammatory. Please retract or, at a minimum, promise not to do it again.


#72

The threat is that they buy the politicians themselves.

It is not necessary to muzzle all speech in order to make bribery illegal. This is a red herring.

Also, if the threat is about “buying” politicians, I fail to see how corporations are assumed capable/willing but MoveOn.org or Greenpeace or Focus on the Family is presumed incapable/unwilling of doing that.


#73

Even a passing familiarity with American politics shows that Americans (or really, people generally) do not respond to the best argument.

Perhaps. But the solution to that is not to have a self-appointed elite OR a populist majority to make rules that predetermine which arguments will and will not be considered at all. That way lies bald authoritarianism which I presume everyone here would find indefensible. Birthers and truthers are the price we pay to also hear substantive radical critiques of U.S. foreign policy. And by the same token, corporate free speech is the price we must pay to also secure (permanently, not subject to the whims of a populist majority) the rights of MoveOn.org and Greenpeace to speak.


#74

Organizations like Communities for a Better Environment, West County Toxic Coalition, etc., which is a multi-racial coalition grassroots movement surely can’t compete against the world’s 5th largest corporation and their record profits.

Bunk. Anti-corporate activists have often found it possible to be effective in influencing the public in opposition to the corporations they target. Money is not dispositive of success, and without that presumption, the entire populist justification for censoring corporations fails just as completely as the legal argument does.


#75

[QUOTE=JPS;217710]

And the insertion of complaints about torture, etc, is just an inflammatory diversion that is unworthy. If that is the direction intended for the discussion, I refuse. I don’t want to participate in a discussion where the presumption taken from the fact that I disagree with you is that I am complicit in torture, etc. That’s just unfair, insulting, and pointlessly inflammatory. Please retract or, at a minimum, promise not to do it again.[/QUOTE]

I was just spoofing your claim that restrictions on corporate speech will lead to an authoritarian society. I never insinuated that you support any of those policies rather I was pointing out that your claim was bunk.

I think you are being naive about the role of corporate power and its ability to impact the political environment in very negative and corrupt ways. There has never been a period of history in this republic where corporate corruption of the political system did not exist. Moreover, corporate personhood didn’t even exist at the time of the writing of the bill of rights. They were still under strict control by way of state charters. I don’t think they should have a right to have a political voice because they are not a political entity. There are plenty of organization types that are affected by policy decisions but we don’t afford them the rights of corporations. So charities, churches, and other social organizations, in other words the very foundation of our civic society can not participate in the same way as corporations.

As usual you sweep my claims under generalizations so that you can apply arguments to them that don’t make any sense. The fight for environmental justice in the Bay Area is not “anti-corporatist” they are anti cancer clusters, miscarriages, lung problems and other public health ailments. It’s not a matter of disagreeing with Chevron’s selfish and criminal behavior, its a matter of life or death. A matter that will largely be controlled by Chevron who now can just astroturf its way out of cleaning up any of their mess like they always do.

To paraphrase Sandra Day O’Connor’s statement on the decision. This will create an arms race in state and local elections (in particular judicial elections). It threatens the very integrity of our political system. Only time will tell your naivety on the subject.


#76

A fascinating discussion. I have a couple of topics to throw in that might spice things up a bit:

  1. Corporate personhood: good or bad?

  2. Wasn’t Obama’s claim last night in his SotU that the Citizens United decision opens up political campaigning to foreign corporations and foreign governments, at the very least, imprecise and sloppy?


#77

As usual you sweep my claims under generalizations

I put a good deal of effort into that post in an attempt to be comprehensive in making the argument. Since even that effort is dismissed out-of-hand as inadequate, I frankly have no reason to continue participating in the discussion.

I will leave you with a reference to George Will’s column, the first line of which does an excellent job of summarizing the hostile reactions to the decision in Citizens United: “an edifying torrent of hyperbole”, and the remainder of which does a good job of documenting how gross a violation of free speech was involved with attempting to implement these restrictions.


#78

I prefer to see it as an opportunity to change laws and work on the ground to change the conditions under which the very real concerns of anti-corporatists are manifest. George Will calling other people out for misrepresentation or hyperbole is rich, however.

Where do you advocates stand on the question of Obama’s “foreign corporations” quip, though? Immediately after the decision, many people including me publicly voiced the foreign influence concern (I had a couple of caveats myself, though: first that I was merely speculating that foreign corporate personhood was a logical extension of corporate personhood, second that I don’t believe the public should feel MORE threatened by foreign corporations than domestic ones). When Obama said what he said (that the decision potentially empowers foreign entities), a bunch of pundits came out of the woodwork and suddenly posed as constitutional scholars, pointing out that it wasn’t true. Then a bunch of other pundits were like, “um, yeah, you’re right, it’s not true. Boy, Obama really f***ed up!” Because pundits are like lemmings.

I think legal scholars can agree to disagree on whether Citizens United was a good or bad decision (I think it leans on two other questions: the concept of corporate personhood, and the possibility of public financing of elections). But what about this foreign corporations/foreign leaders question? Is the media right to be roasting Obama on this?


#79

I just don’t think it’s a hyperbole at all. I see it like this. Given that a rather narrow scoped case was used to turn back 3 previous rulings and called into question about 25 states’ laws, that means either two things… a) we are on uncharted territory (or at least uncharted to us). It’s not as in a referendum were voted down and we reverted back to the squo. In fact, if anything is to be inferred, it’s that this majority took the opportunity to use judicial activism in favor of corporations. Whether you agree this is good or not, it means that there is still something more to come on this issue. which leads to…b) The court still needs to clarify it’s position and probably will given the reactionary legislation that we will soon be seeing. The mass chaos that this rule incites is neither a reflection of the media or progressives; it’s a reflection of the ruling’s upending of what is known to put us into something uncharted.
You can agree or disagree about corporate personhood, but it must be recognized that we need more direction coming out of the court in the future if this “right” is to remain.

That being said, @stannard’s questions…

  1. i have problems with corporate personhood in the first place because they have limited liability, unlike people.
  2. Obama’s statements were true. Did he ever say that foreign nations or companies would directly contribute to campaigns? No. What he did say was that foreign entities would be able to influence our political atmosphere. and this is now allowed under the current ruling. With no restriction on support from a corporation (notice i said support, JPS, not direct donation), foreign entities will be able to funnel support through these corporations OR use their own american subsidiaries to give support (which was previously limited).
    EITHER WAY, the Court took the easy road out by choosing not to comment on the question of foreign entities by categorizing their support as only possibly direct donation, which is clearly illegal.

#80

As Volokh pointed out some weeks ago, it would be impossible without corporate personhood to ever buy or sell stock or other property involving corporations. Literally every single transaction (and large corporations involve thousands of transactions every day) would have to specify each and every stockholder in the corporation (potentially millions of names, complicated further by the ownership of shares by other collective entities). And every time a share of stock was sold, ALL currently executory contracts (thousands) would have to be amended with the new owner’s personal information. (Hopefully, this concern is specific enough to warrant being treated with more respect than just blowing it off in total.)

I think blanket critics of corporate personhood should deal with the practical reasons that it exists instead of just demonizing this one narrow manifestation. Those demanding that corporate personhood be rejected should be required to spell out in reasonable detail a functional alternative rather than just running harms.