Corporate Leveraging of Campaign Contributions Under Citizens United
Last week, Dan posted what had been an email message I sent him in response to a link he’d sent me to an article by Thom Hartmann on Truthout about the Supreme Court’s infamous Citizens United opinion. The key (consecutive) paragraphs of Hartmann’s piece, which I quoted in my email/post, were:
Most Americans don’t realize that the idea that “corporations are people” and “money is speech” are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.
And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.
The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate “under such Regulations as the Congress shall make.”
I said there are two problems with what Hartmann’s arguments—arguments that are being made by many others as well who are appropriately outraged by Citizens Unitedand earlier corporate-free-speech Supreme Court opinions.
One problem, I wrote, is that there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense. I said that Hartmann and the others who have adopted this position, including the drafters of the current proposed constitutional amendment to negate Citizens United by declaring corporations non-persons, clearly intend that this apply only to the corporate-free-speech Supreme-Court-created laws.
I said that the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property, and that eventually that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever. I noted that state statutes, which provide for the creation of corporations, and federal statutes, which recognize corporations as legal entities, do provide for these things. And although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person,” in order to make clear that the statute or regulation does apply to corporations.
I then made the point that the problem of corporate personhood is not that the law, either statutory or court-created, treats corporations as legal entities that have legal rights and obligations, but instead that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights. Constitutional rights, I explained, apply only to persons. In order to accord corporations First Amendment rights, the Court had to declare them persons—not mere legal entities in a statutory sense (as in say, corporations can own property), but persons—in a constitutional sense. This, I said, is a really important distinction.
And it is. A really important distinction.
The distinction gets complicated, though, I said, when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example. But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).
In other words, to the extent that the corporation—or union, or nonprofit political organization (the iconic example in legal opinions being the NAACP)—has constitutional, rather than mere statutory, rights, those rights are derivatives of the rights of the organization’s human members.
The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money is hardly a right that logically derives from those shareholders’ own First Amendment speech rights, I said. “The exercise of those speech rights cannot reasonably be interpreted as intentionally collective among the shareholders; the specific expenditure is not foreseeable to shareholders, and many shareholders, whose politics differ from that of the CEOs, would be horrified by it if the transparency that Justice Kennedy so vaunted in the opinion actually existed and they knew about the corporation’s political role,” I wrote.
My post was posted prematurely. I’d intended to edit it before it was posted. And, as I said in a comment I posted to the post, that comment needs clarification, because it implies inaccurately that corporate management normally lacks, or at least should lack, the legal authority to take actions that are unforeseeable to shareholders. What I meant is that corporate management—and, regarding the use of corporate funds for political purposes of this sort, this presumably would be the CEO—should not be able to leverage the First Amendment speech rights of unwitting shareholders in so unforeseeable a respect. What Citizens United did was authorize corporate top management to leverage shareholders’ First Amendment speech rights and shareholders’ money for political campaign expenditures. But unlike Goldman Sachs when lending leverage to Bain Capital, these shareholder political donors are captive ones.
Of course, the Fab Five majority in Citizens United did pretend otherwise. But then, as I said in another earlier post on AB, declaring clearly-false facts in order to arrive at their chosen result in that case is the very hallmark of that opinion.
In the comments to my earlier post that this post clarifies, there was some discussion about whether the remedy for an objecting shareholder is to simply sell the corporate stock. But for that to be an option even just for people who own the stock directly rather than through a pension fund or mutual fund, the corporation would have to divulge to its shareholders its intent to make that expenditure. Suffice it to say that corporations do not divulge the specifics of these expenditures, even after they’re made, much less beforehand. And the sale on short notice may cause the shareholder to accept a financial less on the sale, all in order to prevent the derivative use of the individual’s First Amendment speech right never foreseeably conferred in the first place.
This particular constitutional right, by its nature, should not transfer so artificially and unintentionally.
—-
For readers who didn’t see my earlier post, and who are curious, I said that the other problem with what Hartmann and others are arguing is their claim that the courts have no authority to render decisions pronouncing rules of constitutional law. I said, accurately, that this claim is profoundly dangerous. I said it mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are fabricating some new rule of constitutional law. As they did in Citizens United.
I also said I love Thom Hartmann, but that I think his position here needs some refinement.
and as I said
i think you are barking up the wrong tree.
i share your concern about citizens united, but i worry that you are so in love with your own legal reasoning that you can’t recognize that to other people it might not have the “obvious” force which it has for you.
i think the “personhood” of corporations is a false trail, and i think trying to overcome its inadequacies by arguing for or against the collectivization of individual personal constitutional right is a quagmire.
what is wrong with citizens united is that it gives too much power to corporations which already have too much power to be safe for democracy.
the answer is to restrict their “free speech” on the same grounds that free speech does not give you a right to shout fire in a crowded theater.
you know, at least attack the problem for what it is. don’t fool yourself with tortured legal reasoning that has nothing to do with the case except an accidental similarity of words.
if a corporation was only ten people who all knew and agreed in advance to bribe a congressman, the remedy would not be to deny the corporation is a person, has free speech rights, or that the shareholders were required to transfer “artificially and unintentionally” the rights…paid for rights?.. to the corporation.
I have a problem with the idea that, as a shareholder of corporations, I have more than my one person share of “say” in this country. I also have trouble with the idea that, via the entity of a corporation, a non-citizen can attain greater input into the direction of this country than I have simply because they have more money than me. At least Murdock had to go through the pretense of naturalization before he began to use money to attempt to control my country.
Y’all–Way back when they taught us that commercial speech and political speech were free to different degrees. You couldn’t claim your patent medicine cured every ill when it didn’t. But, you could say practically anything in the heat of political debate including defaming public officials pretty much as you wished. So, here’s a legal person, the corporation, seeking political advantage so as to influence govt policy in its favor. Why? To make more money more easily in some manner. How is that not commercial speech?
IIRC Beverly posted an earlier piece in which she showed how the majority of five SC conservatives addressed an issue that was not part of the original litigation to reverse previous decisions with which they disagreed. Citizens United seems to be in that category. This is a much more than judicial activism. It’s an abuse of the Court’s power of judicial review. Hmmm. Ya know, the Constitution doesn’t say how many judges must sit on the court. Nine is a traditional number but any President can change that…..How about a 6 to 5 split, liberals predominating? Nah. It’ll never work. 😉 NancyO
Whoa there, coberly. First of all, the reason that “free speech” does not give you the right to shout “fire” in a crowded theater when there is no fire and you have no reason to think that there is, is that it is a deliberately false statement of fact about something that is not what’s known in First Amendment law as “core” First Amendment speech. “Core” First Amendment speech is speech of the sort that is at the heart of democracy: speech about a political candidate or other public figure, or about some issue of public concern. That type of speech, unlike speech about something else (commercial speech, for example), is given a higher level of First Amendment protection. In other words, it is the content of the speech, not the identity of the speaker, that matters.
But the identity of the speaker—whether human or instead a legal fiction—does matter for purposes of whether there is constitutional protection or not. You’re right that when the legal right or obligation of a corporation is created by statute of what’s known as “common law,” calling a corporation a person is just a convenient but not necessary artifice. (“Common law” is a rule of law openly created by a court that has the authority to “make law”—almost always a state high court or the U.S. Supreme Court—rather than expressly by statute or by court interpretation of a statutory or constitutional provision.)
Corporations are created by state law, and state law, or for that matter federal law, can, and these days sometimes does, cut out the artifice, the semantics gimmick, and simply say in the main or only section of the statute that the statute applies to corporations—rather than saying that the statute applies to “persons,” and then saying in a separate “definitions” section of the statute that “person” includes corporations and (say) other types of businesses.
But constitutional rights have always been interpreted to accrue only to humans. The full text of the First Amendment reads: “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.” The text doesn’t actually say that these rights belong only to humans, but you don’t have to be a Scalia- or Clarence-Thomas-type “originalist” to recognize that the Amendment was intended to guarantee those rights only humans and to think that the original application, to humans only, should remain. So, unlike with statutory or common law, groups and associations cannot be cutely defined as people for purposes of the First Amendment and other constitutional rights.
The First Amendment has been expanded— appropriately, in the opinion of most people across the ideological spectrum, I’m sure—to include groups or associations of people (e.g., the NAACP, labor unions, the Chamber of Commerce). But that’s because a group or association, if political in nature, has a basic central purpose that the human members recognize—and recognize as political in nature. It is logical and fair, as a matter of fact, to derive First Amendment free-speech rights of the group from the free-speech rights of its human members. But it is inappropriate to claim as a matter of fact that business corporations, irrespective of size, diversity of membership, and directness (or lack of it) of each individual’s stock ownership, derive First Amendment free-speech rights from the human shareholders. It is the inappropriate […]
Nancy
even FDR couldn’t get that plan to work. can’t see obomba even trying it.
as for the commercial advantages of political speech… you know, that’s what it is about. has always been about.
i think i’ll rely on the basic checks and balances idea of the constitution. or at least fire in a crowded theater. some free speech is just too dangerous.
even that is fraught with problems… but i don’t see the “person” argument, or the “shareholders who don’t agree” argument going very far unless that is the best excuse a supreme court that really wants to limit bribing Congressmen as the standard model of American democracy can come up with.
of course it would be interesting if they allowed political speech “unless it was dishonest.”
Whoa there, coberly. First of all, the reason that “free speech” does not give you the right to shout “fire” in a crowded theater when there is no fire and you have no reason to think that there is, is that it is a deliberately false statement of fact about something that is not what’s known in First Amendment law as “core” First Amendment speech. “Core” First Amendment speech is speech of the sort that is at the heart of democracy: speech about a political candidate or other public figure, or about some issue of public concern. That type of speech, unlike speech about something else (commercial speech, for example), is given a higher level of First Amendment protection. In other words, it is the content of the speech, not the identity of the speaker, that matters.
But the identity of the speaker—whether human or instead a legal fiction—does matter for purposes of whether there is constitutional protection or not. You’re right that when the legal right or obligation of a corporation is created by statute of what’s known as “common law,” calling a corporation a person is just a convenient but not necessary artifice. (“Common law” is a rule of law openly created by a court that has the authority to “make law”—almost always a state high court or the U.S. Supreme Court—rather than expressly by statute or by court interpretation of a statutory or constitutional provision.)
Corporations are created by state law, and state law, or for that matter federal law, can, and these days sometimes does, cut out the artifice, the semantics gimmick, and simply say in the main or only section of the statute that the statute applies to corporations—rather than saying that the statute applies to “persons,” and then saying in a separate “definitions” section of the statute that “person” includes corporations and (say) other types of businesses.
But constitutional rights have always been interpreted to accrue only to humans. The full text of the First Amendment reads: “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.” The text doesn’t actually say that these rights belong only to humans, but you don’t have to be a Scalia- or Clarence-Thomas-type “originalist” to recognize that the Amendment was intended to guarantee those rights only humans and to think that the original application, to humans only, should remain. So, unlike with statutory or common law, groups and associations cannot be cutely defined as people for purposes of the First Amendment and other constitutional rights.
The First Amendment has been expanded— appropriately, in the opinion of most people across the ideological spectrum, I’m sure—to include groups or associations of people (e.g., the NAACP, labor unions, the Chamber of Commerce). But that’s because a group or association, if political in nature, has a basic central purpose that the human members recognize—and recognize as political in nature. It is logical and fair, as a matter of fact, to derive First Amendment free-speech rights of the group from the free-speech rights of its human members. But it is inappropriate to claim as a matter of fact that business corporations, irrespective of size, diversity of membership, and directness (or lack of it) of each individual’s stock ownership, derive First Amendment free-speech rights from the human shareholders. It is the inappropriate […]
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Actually, the best excuse that five members of the Supreme Court could come up with to limit bribing members of Congress as the standard model of American democracy was the fiction that shareholders wittingly lend the corporation their First Amendment political-speech rights. The people who are outraged by this fiction are the ones who want to see that opinion reversed or nullified.
Actually, coberly, the best excuse that five members of the Supreme Court came up with to limit bribing members of Congress as the standard model of American democracy was the fiction that shareholders wittingly lend the corporation their First Amendment political-speech rights. The people who are outraged by this fiction are the ones who want to see that opinion reversed or nullified.
And, exactly how would a typical corporate tool know a honest political statement from one that would make him money? Hmmm? NancyO
Wait. What? NancyO
beverly
i’ll come back and read the rest of this when i have the time. but once again, your certainty that YOU have the law is pretty close to what happens when a person is his own lawyer.
i guarantee what’s wrong with shouting fire is not that it’s “not true.” If i stood up in a crowded theater and said, “the moon is made of green cheese,” i don’t think anyone would prosecute me. and if i remember the case in which the shouting fire argument was made… by the Justice… it was a matter of someone urging men to resist the draft. that is the kind of statement that is neither true nor not true, but arguably dangerous to the nation. i happen to think it wasn’t and that the court erred. but i’d like to think the court can take into consideration whether an action which is otherwise “protected” by the constitution is so dangerous to the nation that it can be prohibited. i think the secession of the Southern states is the prime historical example. moreover i am pretty sure the law can be written to prohibit corporations from funding campaigns without getting into the quagmire of “personhood” or, as has been argued, the right of shareholders to demand prior consent before their money is spent on campaigns they don’t approve of. you might note that the same argument can prevent unions from effectively using union dues to defend the writes of workers because those workers can be demagogued… so easily… into demanding “their money” not be used.. etc.
enough from me for now.
be ware of your self when you finding yourself saying, and believing, in legal argument… “appropriately” and “logical” and even ‘fair.’ the path of self deception is broad and treacherous.
Beverly
as Nancy said, what?
could be i’m tired, but i don’t think you said what you meant.
nancy…
little joke of mine. the idea that political speech would have to be honest just has me rolling on the floor.
I presumed you already understood that the main problem with yelling “Fire” in a crowded theater when there is no fire and the speaker’s just made it up is that it can cause tremendous physical harm. That’s why the issue of First Amendment protection comes up at all, or, more specifically, why the person could be arrested or sued. Someone screaming in a movie theater that the moon is made of green cheese could be arrested for disturbing the peace, or whatever. Someone screaming a political message in a movie theater could, too.
In my response to your comment, I was to show why the screaming-fire-in-a-crowded-theater First Amendment exemption is irrelevant to the Citizens United issue.
I think the analogy is wrong. This is not a case of political speech at all, although that’s what the Fabulous Five pretended. It is clearly settled in law that shareholders do NOT have rights to control what management does in making investment decisions. Therefore if management decides to invest in political bribery (also known as lobbying), that must be regarded as an investment decision. In exactly the same way, using corporate money to plump for the election of people who will provide government benefits to the corporation is just as much an investment decision as choosing to use the money to build a new factory.
I say leave the personhood issue alone. There is now a lot of legal precedent there and it isn’t a weak front to attack corporate money in elections on.
However, people’s rights are different from citizenship rights. Only citizens can vote. I suggest that political contributions and political speech for or against a candidate be linked to the right to vote.
Votes determine elections and candidate advocacy determines votes. Congress can draw a bright line between ‘free speech’ and candidate advocacy on the grounds of citizenship and the right to vote.
Clearly, Greg, First Amendment rights, whether speech rights, religion rights, the right to freely assemble, etc., are separate from the right to vote. Minors (those under the age of 18) have the right to say what they wish about political candidates or about other political issues (including the right to campaign door-to-door for or against a candidate or ballet referendum), as do those convicted of a felony, who under their state’s law have lost the right to vote, immigrants living and working here who do not yet qualify to become citizens or who have chosen not to do so.
So you’re right that people’s rights are different from citizenship rights. And for that reason, First Amendment rights are distinct from citizenship rights.
As for the corporate-personhood issue, there is no precedent at all other than Citizens United that confers First Amendment rights upon corporations. That’s really the point of my post: That in discussing the issue of corporate personhood, there must be distinction made between corporate-personhood constitutional rights (conferred only through the First Amendment rights of actual-person shareholders) and corporate-personhood as a convenient-but-unnecessary artifice under state law. The latter is unnecessary, because state (and federal) statutory law can simply provide for corporate rights and obligations via statute. The former, by contrast, is necessary in order to strike down federal and state statutes as unconstitutional under the First Amendment, to the extent that this supposed First Amendment right is the right of the speaker to say whatever rather than the right of the listener to hear whatever—a distinction I discussed in a post on AB last month.
The problem for the Fab Five justices, though, in relying entirely on the supposed right of listeners to hear what corporations have to say, rather than also the right of the speaker (a person or “person”) to say whatever, is that, logically, there is a real problem, I think, with conferring constitutional rights to hear what non-people have to say. That’s not what they did in Citizens United. It may be what they will do very soon in an upcoming case out of Montana.
Petronius, the problem with your argument is that the very reason for the First Amendment claim is that the Court has authority to strike down federal statutes and (with the exception of a ground called “the preemption doctrine, which is sort of a constitutional/federal-statutory hybrid) state statutes only by ruling the statute unconstitutional. The ruling in Citizens United was a ruling that a large part of federal campaign-finance statutory law was unconstitutional.
It is settled law that shareholders do not have rights to control what management does in making investment decisions, including lobbying decisions, but that settled law is statutory, not constitutional; that is how courts have interpreted state and federal statutes, not constitutional provisions. McCain-Feingold and other federal, and state, campaign-finance statutes can and did alter this—unless, in the opinion of a majority of Supreme Court justices, the limitation is unconstitutional. And because constitutional rights accrue only to persons, the only way for the Court to do that is either to pronounce corporations persons who themselves have constitutional rights or to say that corporations have constitutional rights derivative of their human shareholders’.
As for the latter, then, the question is whether the First Amendment political-speech right is appropriately deemed, by law, delegated to top corporate management by the shareholders or, instead, is too different in nature—too personal and too improximate to the nature and purpose of corporate governance—for the Supreme Court to decree it so as a matter of constitutional law.
Beverly
you think it’s irrelevant. i think it is the heart of the matter. you think the definition of person is the heart of the matter. i think its a quagmire.
i hope you are okay with this. i am on your side on the substantive issue. i have a different point of view. i don’t know how to present my point of view, which i think has merit, without disagreeing with you. sometimes in strong terms. don’t take it personally.
Beverly
so you are saying the SC erred Constitutionally in declaring Corps persons. I would be happy with that if there was a hope in hell of the same SC changing it’s mind.
Not, of course, that they are likely to agree with me that letting Corps buy congressmen is too dangerous for the Republic to allow.
I don’t know if you can legally call in Corp charters and rewrite them so they are explicitly excluded from the kind of direct political “activity” that is so dangerous.
But I am afraid i think the SC is as dangerous to America as the Corps.
As we consider our Constitution in this instance, NYT via Prairie Weather has some commentary: http://prairieweather.typepad.com/big_blue_stem/2012/02/if-we-dont-have-education-economic-opportunity-and-guaranteed-rights-for-all-what-is-america.html
“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.”
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.) …NYT
Beverly
i am weakening it my disagreement with you. but it still looks like a quagmire.
meanwhile, why doesn’t the fourteenth amendment protect convicts right to vote?
seems to me if you want to take away the right to vote, convicting a person of a “crime” is a pretty easy way to subvert elections. similarly, if the best man for office happens to have been convicted of a crime, it seems to me very dangerous to prohibit him from being elected on that basis.
which may only be a tip of the iceberg comment from me on the way the Constitution has been weaseled away from being of much practical use in preventing practical tyranny.
i do tend to focus more on personal and political freedom than “freedom from taxes and environmental regulations” as others do.
coberly:
States set the requirements to vote and most convicts are restricted from voting. Probationers and parolees are also restricted from voting. Not all states disnfranchise ex-convicts from voting. I suspect this is a battle of state rights which I am sure Beverly can answer. For more information, read here:
http://archive.fairvote.org/righttovote/Felony%20Dis%20Laws%20in%20the%20US.pdf
The distinction of citizenship rights is a wedge to use against corporate-personhood. The very concept of “money is speech” means that fighting corporate money in elections on personhood grounds is difficult.
That is why I advocate making it an election issue rather than a speech issue; then corporate personhood is irrelevant.
Make that: “… I was trying to show …”
I don’t take it personally, coberly, and know you’re on my side on this. But as a matter of First Amendment law, the shouting-fire-in-a-crowed-theater type of exemption from First Amendment protection is irrelevant, and in my opinion, should be irrelevant, mainly because I do think that the type of speech considered “core” First Amendment speech is, as a constitutional matter, different, and deserving of more sweeping protection than commercial speech (e.g., commercial fraud) or prank-type speech.
By the way, the current Supreme Court seems well on its way to narrowing that gap very substantially, so that commercial speech is being given more and more unfettered First Amendment protection. It’s a very controversial aspect of the Roberts Court’s jurisprudence.
Section 1 of the Fourteenth Amendment (ratified in 1868) reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The privileges-and-immunities clause was effectively negated in a notorious Supreme Court opinion known as “The Slaughter House Cases” back in the 1880s. So what matters now are the due process and the equal protection clauses. The Fourteenth Amendment applies only to state governments. The Fourteenth Amendment’s due process clause is operatively identical to a clause in the Fifth Amendment, which as part of the original Bill of Rights originally applied only to the federal government—that is, until the Fourteenth Amendment was adopted. The Fifth Amendment does not have an equal-protection clause, but in the 1980s, in an opinion written by Sandra Day O’Connor, the Supreme Court expressly incorporated into the Fifth Amendment’s due process clause by inference a right to the equal protection of the laws as against the federal government—a right the Court said is identical to the one provided as against state governments by the Fourteenth Amendment’s equal protection clause.
Run is right that election law, including who can vote, is largely a function of state law, which can be superseded by federal law under certain circumstances (e.g., voting age in federal elections). But state law can’t violate a constitutional right. States have been allowed to prohibit convicted felons from voting, although not all states do. Convicted felons are presumed to have been accorded due process of law in the criminal proceeding—and in some cases they actually were!—and the equal-protection guarantee usually just means that the government can treat you unequally unless there is “no rational basis” for the unequal treatment.
But you’ve hit upon two analytically important things, coberly. First, there’s this oddity that the removal of the right to vote is not per se a part of the sentence. You may be convicted and sentenced in a state that does not bar convicted felons from voting, but the move to a state in which you can vote. And vice versa. What is the rational basis for a state to deny a convicted felon the right to vote, when that denial is not part of the sentence itself? I have no idea.
Second—and this is really complicated and technical—there is a distinction in constitutional law between procedural due process (e.g., the right to counsel; the bar against warrantless search and seizure; etc.) and what’s known as “substantive due process.” The concept of substantive due process is that there are some rights, including some freedoms, that no matter how much legal process is accorded, the government cannot take that right, that freedom, away from you. The modern right to personal privacy—by which is meant the right to make very personal decisions for yourself—is one such right. That substantive due process right to privacy of that sort is very controversial. It is the Supreme Court-created right (via interpretation of the Fourteenth Amendment’s due process clause) upon which Roe v. Wade and the cases that […]
The distinction of citizenship rights may be a wedge to use against corporate-personhood, Greg, but if so, the cure would be worse than the disease. And I don’t know why the very concept of “money is speech” means that fighting corporate money in elections on personhood grounds is difficult. The issue is whether corporations have a First Amendment right to unfettered political speech. Having money doesn’t determine that issue. It’s a safe bet that the Court would not say, for example, that the Chinese government has a First Amendment right to buy unfettered access to US airwaves.
I don’t understand your claim that making it an election issue rather than a speech issue makes corporate personhood irrelevant. A speech issue is a speech issue; you can’t simply make it something else instead. The problem is with the ruling that corporations have constitutionally-guaranteed political rights, not with the Court’s acknowledgment that political speech is political speech.
I do think, Dan, that it’s a good thing that the Constitution is very hard to amend. A big part of the modern rightwing repertoire during the last 30 years or so has been incessant calls for amendments to the Constitution. Other than the perennial call for a Balanced Budget amendment (and therefore a constitutionally mandated decline into major depression every time there is a significant recession), these proposed amendments inevitably would limit rather than expand civil liberties. Remember the Flag-Burning Amendment? How about the Marriage-Is-Between-A-Man-And-A-Woman Amendment? Etc. Etc. Etc.
Hi Coberly:
If you would like a good book to dwell upon, read the Colfax Massacre which talks specifically about Slautherhouse and Cruikshank decisons by the Miller SCOTUS court. Interesting account how some people’s rights can be subverted. Interesting also is how the SCOTUS chooses to apply the Slaughterhouse decision partially in some cases such as the right to bear arms and not completely in over ruling states. LA still gets away with murder.
Make that: “The right to vote is a constitutionally created right, and the right to due process, like the right to equal protection, does prohibit the irrational (i.e., the utterly arbitrary) removal of a substantive right such as the right to vote.”
Didn’t mean to imply that a Balanced Budget Amendment would expand civil liberties—just that it, unlike the other rightwing amendment proposals in their songbook, has nothing to do with civil liberties, one way or the other. All the others would limit civil liberties. All in the name of freedom, of course!
By framing money in elections as a citizenship issue rather than a free speech issue, we get a host of benefits. First, non-citizens are not allowed to influence elections; this includes corporations. Second, campaign finance laws can actually level the field since citizenship rights are non-differentiated. That is, while we can’t limit speech, we do equalize people’s voting rights (one-person, one vote) and we can use that precedent to equalize money’s influence on elections. When treating this as a free speech issue, the courts have resisted limiting money in elections.
I don’t see a downside, I see a path to bypass all the roadblocks to campaign finance reform.
I think there may be something I don’t understand. How does Citizen’s United not open the door for China to have a say if China has business interests/investments in US registered corporations?
Beverly
what i find troubling about this is your (and the law’s) very complex argument which in my opinion amounts to legal weaseling to get around a very plain fact: the power to deny the right to vote UNDER ANY CIRCUMSTANCES is the power to destroy democracy.
I can convict a person under perfect “due process” of some “crime” EASILY and then apply a previously prepared stature that prohibits him from voting or becoming a candidate despite a potential overwhelming public desire that he should be the candidate to overturn the very laws which they are finding oppressive.
that this is not a stretch can be seen by the way “felon” laws are applied to voting rights in states like Florida… bringing us baby Bush for good or evil against the public will.
thanks run. will try.
Greg wrote:
“The distinction of citizenship rights is a wedge to use against corporate-personhood. The very concept of “money is speech” means that fighting corporate money in elections on personhood grounds is difficult.
“That is why I advocate making it an election issue rather than a speech issue; then corporate personhood is irrelevant.”
The issue of corporate personhood is not the same issue as the issue of money-is-speech. Federal and state campaign finance laws limit monetary donations directly to campaigns and political parties. Those laws also separately limited ostensibly-independent expenditures, whether by corporations, unions, nonprofit groups or individuals—i.e., ad time bought, and ads made by, wealthy individuals (e.g., the Koch brothers) or groups (e.g., PACS and Super PACS). In earlier rulings, the Supreme Court said that the limitations on donations to candidates and parties passed constitutional muster because, although (according to the Court) money equals speech and is therefore protected under the First Amendment, there are strong enough countervailing reasons to allow the limiting of the amounts of money that could be made directly to candidates or parties, but that those countervailing reasons aren’t strong enough to allow monetary limitations on supposedly independent expenditures: ads put out by groups or wealthy individuals.
The corporate personhood issue is a separate issue. It concerns not whether money equals speech for First amendment purposes but instead who, or what, has First Amendment protections. So the distinction of citizenship rights, as Greg puts it, may be a wedge against allowing corporations, or foreigners, or other non-humans or non-citizens to buy or contribute to a fund (a PAC or Super PAC) that makes supposedly-independent election expenditures. And in fact, the Supreme Court very recently denied a petition from a foreigner who had lost on the issue in a lower federal appeals court, asking the Court to decide whether foreigners do have First Amendment speech rights to make campaign contributions directly to candidates or parties or to make so-called-independent expenditures by contributing to a PAC or whatever.
Greg wrote:
“The distinction of citizenship rights is a wedge to use against corporate-personhood. The very concept of “money is speech” means that fighting corporate money in elections on personhood grounds is difficult.
“That is why I advocate making it an election issue rather than a speech issue; then corporate personhood is irrelevant.”
The issue of corporate personhood is not the same issue as the issue of money-is-speech. Federal and state campaign finance laws limit monetary donations directly to campaigns and political parties. Those laws also separately limited ostensibly-independent expenditures, whether by corporations, unions, nonprofit groups or individuals—i.e., ad time bought, and ads made by, wealthy individuals (e.g., the Koch brothers) or groups (e.g., PACS and Super PACS). In earlier rulings, the Supreme Court said that the limitations on donations to candidates and parties passed constitutional muster because, although (according to the Court) money equals speech and is therefore protected under the First Amendment, there are strong enough countervailing reasons to allow the limiting of the amounts of money that could be made directly to candidates or parties, but that those countervailing reasons aren’t strong enough to allow monetary limitations on supposedly independent expenditures: ads put out by groups or wealthy individuals.
The corporate personhood issue is a separate issue. It concerns not whether money equals speech for First amendment purposes but instead who, or what, has First Amendment protections. So the distinction of citizenship rights, as Greg puts it, may be a wedge against allowing corporations, or foreigners, or other non-humans or non-citizens to buy or contribute to a fund (a PAC or Super PAC) that makes supposedly-independent election expenditures. And in fact, the Supreme Court very recently denied a petition from a foreigner who had lost on the issue in a lower federal appeals court, asking the Court to decide whether foreigners do have First Amendment speech rights to make campaign contributions directly to candidates or parties or to make so-called-independent expenditures by contributing to a PAC or whatever.