Worst SCOTUS Decision of the Decade, Hard to Top


#121

We Need to Analyze the Effects of Rulings on the Integrity of Democracy

Ak, you keep claiming that this point is being ignored, so I want to reiterate my response – I dissent from the narrow definition of democracy that your claim presumes.

You say that allowing corporations to participate in public debate over political issues that affect them directly undermines democracy because, by comparison, individual voters find themselves outweighed. This presumes a definition of “democracy” that is restricted to individual voters only. “Democracy” is thus harmed (or benefited) solely by its effects on the influence of individuals.

I respond that corporations and other collectivities are part of the democratic polity and have legitimate and distinct interests in the policies established by that polity. Thus, to prohibit them from speaking or participating in the debate denies democracy in the name of protecting it.

It is only by presuming the inerrancy of a rather self-serving conception of “democracy” that you can make your sweeping claims that you claim face no rebuttal.


#122

Jason: try this conception for less than corporate personhood:

Corporations lack personhood but get all rights they had after the decision in Austin v. Michigan Chamber of Commerce; you could even have the rights spelled out nicely like the Uniform Commercial Code rather than through a series of decisions like the common law governing contracts for services.

The choice of the words “special rights” is interesting in light of Prop 2 and Romer v. Evans. That said, Romer was decided on a rational basis test, and as much as you disagree with your opponents on this thread, I think you’ll admit that there is a rational basis (albeit one you disagree with quite strongly) for regulating corporate speech. Your argument, as I understand it, is that free speech is a fundamental right, triggering strict scrutiny. But if a corporation is not a person, then it doesn’t have fundamental rights, so that way the court could permit it.

I think that covers the legal framework question, though there’s still a normative (good/bad policy) question. Central to your argument seems to be the conclusion that corporations have unique interests and they need free speech rights to vindicate those interests. I think that’s where you have to be with this argument- it doesn’t make sense that corporations need free speech rights for freedom of conscience reasons (I’m mixing components of First Amendment thinking here but Judge McConnell has a lot to say on that for the religion clauses), and I can’t conceive of why else corporations would need free speech rights.

Now, let’s admit that corporate success is instrumental, meaning it is not good in and of itself. Record profits for GM (lol) do not make GM feel happy or satisfied as any sort of sentient entity; they are good because they keep GM workers employed and deliver returns to investors in GM (and not just bankers at Goldman, also the aforementioned pensioners). So then the question is- why can’t those other people speak on behalf of the interests they have in the corporation? At the core, either you think this isn’t a problem, or this has to be some sort of collective action problem or prisoner’s dilemma.

So you need to solve the aggregation problem, or these interests won’t be fully represented. If you buy that there is some other good that exists from limiting corporate speech (others have engaged in this argument, there’s really not that much to explore on it, either you buy it or you don’t), then maybe this is something that you can settle for. The people who benefit from corporations all have free speech, so they can speak on behalf of the interest they have in the corporation doing well. There’s still room for groups like Swift Boat Veterans for GM to form, albeit voluntarily. Given the pattern of how government has acted, I think you can see that corporate interests were represented through other channels.

So here we have a viable exit from corporate personhood, a legal evaluation of why it would be ok to not grant the rights given in Citizens United, and a policy rationale why this would be good. What I’d like to hear from Jason is not that there are no benefits from curtailing corporate speech (I think there are and you’re not going to change my mind on that), but if there’s something else wrong in this analysis. In other words, we’re going to agree to disagree, but I want to know what exactly we disagree about.

Thanks.


#123

So then the question is- why can’t those other people speak on behalf of the interests they have in the corporation? At the core, either you think this isn’t a problem, or this has to be some sort of collective action problem or prisoner’s dilemma.

I would say there is a collective action problem as well as problems with information asymmetry and cognitive limits. Individuals who are investors in a mutual fund simply lack the information, expertise, and time to effectively advocate for that corporation’s interests in addition to their unique individual interests.

And I’m not absolutely opposed to some kind of reconceptualization of corporate personhood provided that it not go to excess by indulging in extremist presumptions and impractical hand-waving.

What I’d like to hear from Jason is not that there are no benefits from curtailing corporate speech (I think there are and you’re not going to change my mind on that), but if there’s something else wrong in this analysis. In other words, we’re going to agree to disagree, but I want to know what exactly we disagree about.

Well, I think the harms from a conception of corporate personhood are not non-existent, but that they are grossly exaggerated (e.g. the title of this thread and the family of hysterical and hyperbolic overreactions to which it belongs – overimpacting has unfortunately become routine from debaters and bloggers alike). While I would grant some legitimacy to the argument that increased expenditures equals some increased influence, I would also insist that anti-corporation activists at least calm down enough to recognize the caveats of diminishing returns and populist backlash that seriously mitigate any advantage that corporations could gain by just dumping money into elections. Spending a record amount of his own money couldn’t even get Mitt Romney past Super Tuesday, let’s remember. Does anyone really think that if he had been sponsored by an additional $100 million from Exxon that the result would have been any different? I don’t buy it.

So I think harms are exaggerated and that the difficulties of constructing a comprehensive and legally coherent alternative are too quickly waved aside. As long as critics of corporate personhood were willing to grapple seriously (not just hand-wavy “hey, Congress will take care of it” fiating away the disad), then I would at least be willing to be respectful in the disagreements that might remain.

I think we would probably also disagree about the degree of restriction that should be imposed on corporate speech. I think corporations have for too long been subjected to a rather one-sided populist dominance in the public sphere (the influence they do maintain is largely behind closed doors with lobbyists) and that bringing corporations out of lobbyist shadows and into the real PUBLIC debate would ultimately be to the benefit of both corporations and the public at-large. I think allowing populist anti-corporation-ism to dominate has given too many people very inaccurate and politically toxic ideas about what corporations are all about, how they function, and the purposes that they serve. Certainly, the level of knowledge that I have heard from debaters over the years both in rounds and on this forum has indicated to me that the level of public knowledge about the legal and practical issues surrounding corporations as form of business organization is deeply and dangerously ignorant and infected with a toxic variant of populism that results in very, very bad policy prescriptions. Having corporations giving their side openly in the broader public forum beyond K Street would begin to at least mitigate the ignorance and prejudice that currently rules almost all public discussion of corporations and related policies.

So I would like to see corporations allowed and encouraged to present their case openly in political debates rather than asking that it be shoved back under the rug with restrictions that force laundering and wink-wink-nudge-nudge games for them to get their message out. Reforms that restricted closed-doors lobbying while freeing corporations to nearly unlimited open-forum corporate speech would be, to my mind, ideal.


#124

To clarify, when I say special rights, what I really mean is this ridiculous notion that corporations have full constitutional protection equal to that of citizens. Specifically the arguments made by the Supreme Court where it was a violation of free speech to place restrictions on corporations. These examples exist under many circumstances, but I can’t sit here and list them all.

I do not believe corporations need to be shut out of the public discourse, that has never been my argument, nor is that even possible. My argument is that corporations should have equal rights to discourse as anyone else. In a political game where the object is frequently money, corporations have a far greater ability to effect change than ordinary citizens, and use this quite liberally in all areas of the political equation: campaigning, donating, back-room deals, lobbying, PACs, designing laws, and using trade groups to make political advertisements via PACs.

My argument on the Supreme Court decision isn’t that corporations should be denied speech, merely that it should be limited. Under the status quo corporations already have many methods for communication and electioneering. Hell, GE runs these “Imagination at work” ads not because ordinary citizens buy power plants or high-speed trains from GE, but to create a political image. British Petroleum does the same thing with their “Beyond Petroleum” ad campaign (which, by the way, is bullshit as BP is on the forefront of recarbonization, they are expanding their new oil sources by using tar and some of the most environmentally devastating, CO2 producing, and pollution emitting types of oil - their recarbonization strategy is their platform moving into 2020, with green energy an afterthought for political reasons).

My point here is simple, corporations already have plenty of avenues for communication, and the limits are in place to prevent the effects of corruption that corporate spending often produces. My goal here isn’t to deny corporations speech, I am not remotely fearful of engaging corporate spokespersons in a debate on the issue, and I’m confident that any intelligent political advocate can address these issues. My worry is the excess spending, the effect it has on candidate’s behaviors, and the effect it has on narrowing the political field. These are the effects that I feel are damaging to the electoral system. You speak significantly of the first half (corporate speech), but don’t reference the negative effects of corporate spending.

Additionally, seeing as I think the rules should apply to all, I don’t think it would make the debate one-sided at all as you claim, “anti-corporate activists” would face the same limits.

I think “limited liability” is problematic in general, whether for-profit or not. I would not limit it to specific types of corporations, my position is unchanged from the start of this thread: the rules apply to everyone. Non-Profits frequently abuse their image or position to engage in unethical behavior or to benefit themselves financially. It might not be as prevalent as corporate misanthropy, but it certainly merits oversight. However, I really don’t want to engage limited liability too deeply on this thread, we’ve already got two topics for this thread: SCOTUS ruling and Corporate Personhood. We can discuss limited liability elsewhere.

For the specifics of the implementation, I’d rather Mike do the talking. I’m not a law student. Mike and I will probably disagree on some of the specifics of implementing alternatives, but I feel that we both support the same path:

Ending the constitutional “citizen” priveleges and focusing on financial rights.

The specifics of that path can be hammered out, but I firmly believe that the discussion is hammering out the details not which path to take.


#125

[QUOTE=JPS;217830]Ak, you keep claiming that this point is being ignored, so I want to reiterate my response – I dissent from the narrow definition of democracy that your claim presumes.

You say that allowing corporations to participate in public debate over political issues that affect them directly undermines democracy because, by comparison, individual voters find themselves outweighed. This presumes a definition of “democracy” that is restricted to individual voters only. “Democracy” is thus harmed (or benefited) solely by its effects on the influence of individuals.

I respond that corporations and other collectivities are part of the democratic polity and have legitimate and distinct interests in the policies established by that polity. Thus, to prohibit them from speaking or participating in the debate denies democracy in the name of protecting it.

It is only by presuming the inerrancy of a rather self-serving conception of “democracy” that you can make your sweeping claims that you claim face no rebuttal.[/QUOTE]
I dislike your definition of “allowing corporations to participate in the public debate.” I think there is a substantive difference between participating in the public debate and having the ability spend unlimited sums of money. The effects of wealth should not be glossed over, especially not in their effects on, I’ll say it again, the integrity of democracy.

I’ve stated in my other post but I think this merits further response since I think its the crux of our disagreement.

I believe corporations should be allowed to participate in the public debate and show their side of the story, they are certainly part of the polity and I don’t disagree with you there. However, I think they achieve this more often than not: they have incredibly lobbying influence on K Street, they frequently have private access to senators from their home-states or where they have large financial dealings, they produce ads to create a corporate image year round, they send their ‘experts’ and spokespeople on news shows and talk shows all the time, they have access to media and a wide range of news media very firmly defends ‘corporate political views’ (The Economist, Wall Street Journal - not to say they won’t ever speak against corporations, but on any given issue you can guess with 90% accuracy what their editorials will say). Corporations have their place in the public discourse, it is impossible to get them out of it (especially when they own many mass media institutions.

My argument is not to end corporate speech, but to limit their ability to spend financially in elections. Spending unlimited sums of money is not simply “participating in the public debate,” it is using wealth to influence elected officials and the electoral scene in ways which average voters can never do. The negative effects produced by corporate spending in elections merit far greater attention than you are giving it. You are correct that you cannot make the political debate one-sided (which I never endorsed), however you certainly can make strides to limit the financial influence. Corporations frequently use their wealth as a tool to influence the opinion of elected officials. I would argue that under status quo corporations already have excess influence in Washington, and that is the primary concern of my opposition to the Supreme Court ruling. I don’t think they should be denied the right to speech, but delimiting corporate financial influence in elections is not a move towards speech, its a move for quid pro quo financial influence, and that should be of serious concern to anyone.


#126

I believe corporations should be allowed to participate in the public debate and show their side of the story, they are certainly part of the polity and I don’t disagree with you there. However, I think they achieve this more often than not: they have incredibly lobbying influence on K Street

As I made clear in my reply to Mike, I view lobbying as a very different kind of activity than actual participation in the public forum. Encouraging corporations to move away from lobbying and into actual public debate by, you know, actually allowing them on to the field would be a positive change for both corporations and for the broader public, in my view.

delimiting corporate financial influence in elections is not a move towards speech, its a move for quid pro quo financial influence, and that should be of serious concern to anyone.

And as I have repeatedly explained, I think the charges of “massive influence” from being allowed to spend money in elections are hyperbolic, inattentive to substantial mitigating factors like diminishing returns and populist backlash, and unwarranted by actual experience. I think an accurate evaluation of the issues surrounding corporate personhood and corporate free speech requires a sober and careful analysis of its consequences rather than a dramatic one.


#127

Ending the constitutional “citizen” priveleges and focusing on financial right

Corporate personhood already does not include “citizen” privileges (e.g. voting). Understanding the distinction between “person” rights and “citizen” rights is absolutely fundamental to being able to have this discussion in an informed way.

My argument is not to end corporate speech, but to limit their ability to spend financially in elections.

The question is how to enact a “limit” that does not inevitably collapse into content restrictions and further limitations being imposed whenever the “wrong side” happens to prevail in a particular political contest. Once the principle of unrestrained participation is disavowed, it becomes impossible to draw a stable line protecting any participation. This isn’t exactly a slippery slope arguing (e.g. any restriction leads to total restriction), but rather an objection to the sacrificing of the only possible permanent protective principle out of concern for the kind of more gradual and episodic evolution that could result from it.

My bottom line is that corporations are affected by government regulations and policies as well as by social attitudes that underlie political attitudes. As such, they NEED to participate in politics with more than just behind-the-scenes lobbying efforts. Corporations need to be part of the OPEN political and policy debate process, both in pursuit of their own interests and the collective interests of society. Unless we embrace the idea that corporate interests are always contrary to broader societal interests (a view that, while implicit in some of your rhetoric, I don’t think you would openly defend), corporate voices in the political and electoral debates are essential, and not just as limited to lobbying activities.