But money isn't just something we're putting in our mouths for breakfast these days; legally speaking, its also coming out of our mouths in a curiously ironic form known as "free speech." About this subject, everyone is opining, which is generally a good thing because the Citizen's United ruling, which will allow corporations, unions, and other organizations to spend unlimited amounts on elections, is one of those cases that truly warrants plenty of discussion. However, I would place one conversation in particular between Harvard Law Professor Larry Lessig and Salon's Glenn Greenwald above most in the analyzing-each-side-rationally-category.
But seriously: I don't know what to think about this case. I hate the notion of money being equivalent to speech, but I know that even the dissenting judges believe it to be true legally. And even though the court went beyond the narrow issue specifically raised by United, and also defied a century of precedent, I think Greenwald and the ACLU are mostly correct here (One should read their positions carefully). However, my inchoate thoughts on what's at issue here are finding lucid articulation in Patricia Williams latest piece in The Nation.
Even accepting that progressives are clearly outmatched by reactionary corporate interests, I'm not sure this decision is really the death knell of the American republic that so many in media are portraying it as. Even given that the common understanding or established interpretation that corporations are more than, in Patricia Williams' words, a "juridical stand-in for a person" is erroneous nonsense (See below for why), campaign finance laws prevented little to no corruption, because they protected Congress little---if at all---from the influence of money. Likewise, some respected people Greenwald cites say "this decision will do little more than move money around that is already flooding the political process."
Furthermore: to say that corruption is only going to get worse because of this decision isn't a prudent legal opinion either. The "compelling state interest" argument is not only an insufficient reason for restricting this kind of stupid speech, but really quite frightening, and even possibly harmful if it is used against clearly enumerated, core civil liberties, such as freedom of speech---both individual and collective. As Greenwald persuasively argues, whether or not there will be even more corruption is besides the point: judges are not supposed to rule on pragmatic, "outcome-based" grounds---- the desirable effects of a possible decision----but strictly on constitutional grounds:
The "rule of law,"however, means that if the Constitution or other laws bar X, then X is not allowed regardless of how many good outcomes can be achieved by X. That was true for the "crisis" of Terrorism, and it's just as true for the crisis of corporate influence over our political process.I applaud him for reminding liberals why we opposed the Bush administration's assault on civil liberties: warrantless wiretapping, indefinite detention, denial of habeas corpus, etc.etc. There too was a "compelling state interest," right? President Obama certainly thought so when he hypocritically voted for retroactive immunity for the telecoms as a senator. Today, he shows little reservation about carrying out all those other policies that were SO odious when Bush was in power. Let's not also forget the right to assassinate American citizens too. Sounds like a right-wing conspiracy theory (as some variations are), but this painfully absurd fact is also very true, acknowledged by the Director of National Intelligence himself last week. (Yemen, beware of harboring more alleged, American-born terrorists lest the U.S. government arbitrarily decides to bomb you silly again!) But back to the issue at hand...
Does it even matter that corporations aren't actually people when the Constitution says Congress shall make no law...abridging the freedom of speech, or of the press? It doesn't say only individual speech is protected---and clearly----by press we can infer collective entities and organizations, right? So what do we do about that? Money=speech; individuals and organizations' rights of speech=shall not be abridged; money shall not be abridged the freedom of speech, apparently. Moreover, we too would like our own advocacy groups spending money in order to nudge representatives towards our own special causes. And until the Citizens United case, many of The Good Guys out there were prevented from doing so. So is it all that bad?
Yet still: corporations will win this battle to inundate our politics with their "speech." Simply the threat of withdrawing inordinate sums of money from a candidate's campaign will no doubt induce complete and utter obeisance. People will have to organize and finance counter messages to feed the Public Mind, at which point we can hope that unadulterated facts, reason, and rationality will prevail in the end despite our better funded adversaries. Public discourse will have to step up qualitatively to match this fusillade of corporate, post-truth political advertising. Maybe this is just the opening salvo necessary to re-galvanize the public financing of elections movement.
Supposedly states can alter corporate charters to remedy the United decision without over-reaching on the First Amendment. There are, and there should continue to be, thoughtful discussions on passing a constitutional amendment that could answer the problems of the court's ruling----despite the difficulty of doing so. And lastly, the U.S. Congress should be compelled to pass legislation for the public financing of elections, period.
With all of that said, Patricia Williams makes a typically trenchant observation about the history of money as "political speech" that all nine justices should avail themselves to understand (This, admittedly, makes United so frustrating and complicated because---again---none of the justices see the notion of money as political speech this way). Juxtaposing the corporate restrictions on speech for those within the organization against their newly won unrestricted "freedom," Williams sets out to answer "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." She takes the interpretation of the courts since Buckley v. Valeo to task:
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.But it gets better:
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.
Ok, so not only can corporations restrict the individual speech of their members, but they are able to advocate for policies counter to the public good, the "egalitarianism" of the "ideal of community," all because of an erroneous conflation between the animate----actual people----and the "inanimate entities" whose "limited," "fictive personhood," "a kind of juridical stand-in for a person" is no longer interpretively "rooted in the efficiency interests of contract and property law." That "efficiency interest," as I understand it from my privately-financed, undergraduate public education, is the whole point of forming a corporation: limited liability. Whose speech rights are actually restricted:
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?
Good question. Williams' correct understanding of history here, and her premise that "If there is no such grounding in practical purpose, we humanize a golem" challenges Greenwald's view that since the nine justices aren't even considering corporations' "personhood" and whether speech for them is money, then the battle against Citizens United must necessarily be a legislative one. To my mind, Greenwald's strict, conscientious fidelity to the oft-abused "rule of law"---such as it is today---is in contention with Williams' more fundamental truth, the veracity of history, which should be inviolable. Reconciling these two perspectives is extraordinarily difficult. Not least because the importance of historical perspective and the "original intent" of corporate, contractual law are contending with practical applications of why corporations must be protected as individuals: Ironically, Greenwald's view becomes more "practical"* than historical because his legal reasoning here builds off of contemporary interpretational concerns, whereas, Williams is advancing an "originalist" view, one based around the historical intent of this legal construct----the corporation (This is an ironic switch because I believe liberal interpretations tend to be of more the pragmatic strain---seeing the constitution as a "living" and "evolving" document. Conservatives, at least Scalia---and usually in an ahistorical, ideologically-driven manner----feign to interpret the constitution in the "originalist," historical-contextual mode).
*(Indeed, Greenwald is very much thinking about the practical ramifications of not defending money as free speech. See these questions he asks to illustrate the point.)
But still, Goddamnit!---how does one respond to Williams' underlying point, which she emphasizes with a brilliant quote from "the great legal realist philosopher Felix S. Cohen":
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.
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Anyways, for more on the new ruling and it's likely pernicious effects on judicial elections, one of which is increased conservative "judicial activism," watch Moyers here (And then don't miss him with Jefferey Toobin). Also check out his interview with First Amendment lawyer, Floyd Abrams, and then Floyd Abrams v. Trevor Potter . Lastly, see Larry Lessig debate Nick Gillespie on Moyers.
And speaking of the conservative brand of judicial activism, with its purported reverence for tradition, precedent, and stare decisis take a look at Colbert's destruction of Justice Roberts' flimsy opinion on United.
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| The Word - Prece-Don't | ||||
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I tried to get at few words on this decision from someone whose legal opinions I really hold in high regard:
Orange Gatito, AKA Kittyheart
He KNOWS WHAT'S TO BE DONE ABOUT ALL THIS.
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