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The Corporatization of Political Discourse

January 21, 2010 - by Donny Shaw

And you thought money in politics was bad enough already… NYT:

The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

Taegan Goddard: “This decision will almost certainly cause a mini-revolution in American politics.”

At the heart of the ruling (.pdf) is this bit of logic:

Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Al- though currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech.

Remember, thanks to the 1976 case Buckley V. Valeo, giving money to politicians is considered “speech.”

And while the Buckley court ruled that the “appearance of corruption” was a constitutionally sufficient justification for placing limited restrictions on corporate funding of politicians, today’s ruling pretty much did away with that notion altogether:

…this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

Justice Stevens wrote the dissenting opinion, which begins on page 88 of the PDF: “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”

Ellen Miller at Sunlight Foundation: How the Citizens United Case Affects Money & Politics and Transparency As We Know it

More commentary from around the internet can be found at Memeorandum.

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Comments

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LucasFoxx 01/24/2010 8:53am

Talk about your activist judges: “Essentially, five Justices were unhappy with the limited nature of thecase before us, so they changed the case to give themselves an opportunity to change the law.”

+ To the health of Justice Stevens. Good luck to us all.

nmeagent 01/23/2010 2:39pm
in reply to tolbertme Jan 22, 2010 6:59pm

Corporations don’t vote. Though they can fund a campaign and buy plenty of political ads and such, they cannot pull the voting lever for people. The “impending corporate purchase of congressional representation” is entirely the fault of the voters who are so swayed.

Corporations are owned by people. Are the Constitutional rights of these people (shareholders and owners) unworthy of protection? Strangely I do not see any “except for corporate shareholders and owners” clauses in the Bill of Rights.

tolbertme 01/22/2010 6:59pm

Corporations are not people- one vote, one person. Congressional representation shall be apportioned by the population of individual living people.
The reality is that corporations and globalization have weakened unions to the point that their contributions simply can’t compare to the impending corporate purchase of congrssional representation.

redduke 01/22/2010 6:04am
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+ -1

Between this decision and the last election we should seriously consider a new responsibility to be an American citizen . . . to become well-informed. The last election demonstrated that an uneducated electorate is a danger to our liberties. The American Government has exceeded it’s authority and continues to do so. I welcome stupid ideological commercials by flagrant partisans and special interests to be a part of my informed decision on who I will vote for to be my representative.

I noted in the proposed constitutional amendment by those wishing to overturn this decision has conveniently missed including Unions in the amendment so they would wish to stop corporations from free speech but allow unions.

nmeagent 01/21/2010 12:50pm
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+ -1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s pretty clear. Even if done in the name of campaign finance ‘reform’, denying union members and corporate shareholders/owners from expending their assets towards certain types of speech (political ads) is still infringement and therefore illegal. Does the Constitution magically stop protecting these peoples’ rights when they act through a corporate entity or organization which they control?

This is only a bad thing if one is weak-willed enough to be constantly swayed by expensive political ads. Of course, those types of people are just as likely to skip going to the polls because it’s raining as they are to act on these ads.

donnyshaw 01/21/2010 9:38am
in reply to Sparhawk2k Jan 21, 2010 9:23am

It’s extremely difficult to change. There are legislative fixes in the works from Dems (and possibly Snowe, McCain…), but as long as the Supreme Court remains the same, they risk being overturned.

A lot of campaign finance reform folks are supporting the Fair Elections Now Act, which might avoid constitutional challenges because it adds so-called “speech” rather than subtracting it:

http://www.opencongress.org/bill/111-s752/show

Sparhawk2k 01/21/2010 9:23am

What sort of options are there for changing this? Since it’s coming from the Supreme Court would it require amending the constitution? Or are there smaller changes that could be made to stop the “mini-revolution”?

The Sunlight article talked about transparency but is there anything else being looked at?

wwahammy 01/21/2010 8:17am

@RonBacardi – you bring up a good point but the reason people mention corporations more is that if you look at PAC spending, corporate PAC spending far outstrips union PAC spending. Yes they’re both bad but its an issue of size.

RonBacardi 01/21/2010 7:27am
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+ -1

I guess after a few postings its pretty clear where you stand ideologically, Mr. Shaw. I really enjoy how you focus completely on corporate campaign contributions, but ignore the fact that unions can now do the same, as if union contributions are less or important or less ‘malicious’ than corporate giving.

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