SCOTUS: Citizens United Brings Out The Core Belief Splits From The Bench

The full transcript from yesterday’s Citizens United arguments has been released by SCOTUS.  SCOTUSblog has links to both the transcript and the tape of oral argument, made available from PBS Newshour.

Depending on the outcome of the case, there could be a reversal of laws which sought to balance speech rights against a compelling interest to prevent public corruption that go all the way back to Taft-Hartley and beyond.

Nina Totenberg hit the nugget of the day squarely in her NPR reporting: "When Olson argued that Congress must have a compelling reason to limit corporate speech, Justice Stephen Breyer said the compelling argument is that "people think representatives are being bought."

Lyle Denniston has some excellent analysis as well, including:

Kennedy was less aggressive in his questioning, but openly voiced concern that government arguments for leaving intact the two precedents against corporate political spending would undercut the Court’s 1976 decision in Buckley v. Valeo, finding constitutional free speech rights in political spending by all sources, corporations included. And he said those precedents meant that corporations would be “silenced” when they had contributions to make to public policy by speaking out during campaigns.

The core problem with those prior rulings, Kennedy said, was that they “chill expression” based on the speaker. “There is no place where an ongoing chill is more dangerous than in the election context,” he commented.

As in every case the last few years that has had a close divide, satisfying Kennedy’s concerns will likely be the path to the majority.

Reading through the transcript, several things jumped out at me including the gulf between core beliefs of the Justices, and the weighing of the public’s interest in curbing corruption versus the corporate interests. It’s fascinating stuff.

See if you can guess which justices said each of the following from the SCOTUS bench:

(1) Do you think Congress could prevent foreign individuals from funding speech in United States elections?

(2) Well, Mr. Olson, do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?

(3) So here the obvious argument is: Look, they said the compelling interest is that people think that representatives are being bought, okay? That’s to put it in a caricature, but you understand what I’m driving at, okay? That’s what they said in Buckley v. Valeo. So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else. . . .So in what respect is there not conceptually at least a compelling interest and narrow tailoring?

(4) . . .once we say [State and Federal legislatures can't balance electoral process needs and First Amendment rights], except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

(5) Congress has a self-interest. I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.

(6) But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle. The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject. Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

(7) But it is extraordinary — I mean, the — the idea and as I understand the rationale, we — we the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation and they don’t know that the corporation is taking out radio ads. The government has to keep an eye on their interests.

(8) In that respect, it’s unlike the union, because the — the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes. But there is no comparable check for corporations.

(9) But we don’t put our — we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

(10) . . .there is nothing unusual whatsoever about a case in which a party before the Court says, my constitutional rights were violated, and there is no prior decision of this Court holding that what was done is constitutional. And in that situation is it an answer to that argument that this has never been challenged before? The Court has never held that it was unconstitutional? It has been accepted up until this point by the general public that this is — that this is constitutional? No, that is not regarded as an answer to that question.

Answers: (1) Scalia; (2) Alito; (3) Breyer; (4) Sotomayor; (5) Scalia; (6) Kennedy; (7) Roberts; (8) Ginsburg; (9) Roberts; (10) Alito

 
115 Responses to "SCOTUS: Citizens United Brings Out The Core Belief Splits From The Bench"
Christy Hardin Smith | Thursday September 10, 2009 05:34 am 1

Morning all — thought you guys might get a kick out of playing “which justice” as you read the transcript snippets.

And now for another cuppa coffee…


dakine01 | Thursday September 10, 2009 05:48 am 2

(1) Do you think Congress could prevent foreign individuals from funding speech in United States elections?

I believe this goes to the question I asked yesterday morning, i.e., since I believe current law already bans foreign individuals from contributing to individual candidates. So by extension, since they are already banned, it seems logical to me that banning foreign corporations would also fit.

But then Scalia could well be planning on reversing the ban against foreign contributions as part of the whole sale sell out to the Corporations.


Christy Hardin Smith | Thursday September 10, 2009 05:52 am 3
In response to dakine01 @ 2

It does go directly to it — there was a whole colloquy on that issue in the transcript between Justices Ginsburg and Scalia and Ted Olson that was fascinating. Will paste a bit of it in in a sec for you…


Christy Hardin Smith | Thursday September 10, 2009 05:53 am 4

Oh — it’s huge. Sorry — had forgotten how big that back and forth was at the beginning of the arguments. It starts on p. 5 of the transcript though and continues onward from there. It’s a really intriguing read — and especially amusing to see how Olson dances around fully answering the questions.


dakine01 | Thursday September 10, 2009 06:07 am 5
In response to Christy Hardin Smith @ 4

Wow! Olson really did have his Dancing Shoes on there.


Christy Hardin Smith | Thursday September 10, 2009 06:08 am 6
In response to dakine01 @ 5

Yep — I don’t think he managed to directly answer any of the questions on it. Which I’m certain Justice Ginsburg noticed and will likely bring up during conference.


jayt | Thursday September 10, 2009 06:09 am 7

As in every case the last few years that has had a close divide, satisfying Kennedy’s concerns will likely be the path to the majority.

yep. I’ve been calling this The Kennedy Court for quite a while now.


Raven | Thursday September 10, 2009 06:11 am 8

How’s the “quickstep” Red?


eCAHNomics | Thursday September 10, 2009 06:12 am 9

Isn’t the fix in on this? Wait until Sotomayor votes with the majority.


Christy Hardin Smith | Thursday September 10, 2009 06:13 am 10

I have to say, my fave has to be the “we don’t put our First Amendment rights in the hands of FEC bureaucrats” comment.

Gee, what do you really think about government employees?


jayt | Thursday September 10, 2009 06:13 am 11

OT – just looked at the Sitemeter – busy, busy day at The Lake yesterday – almost 200,000 page visits.

kudos to the tech crew.


Christy Hardin Smith | Thursday September 10, 2009 06:14 am 12
In response to eCAHNomics @ 9

It’s not and, if anything, her comments from the bench indicate that she’s far more liberal on corporate issues than we may have thought. You never know until an actual opinion is crafted — and it will take years to see the trend — but the fact that she openly made a comment from the bench questioning the validity of the “corporate personhood” reasoning is huge.


Christy Hardin Smith | Thursday September 10, 2009 06:15 am 13
In response to Raven @ 8

Quickstep? May be a lack of coffee on my part this morning, but I need further elucidation on that one. *g*


eCAHNomics | Thursday September 10, 2009 06:17 am 14

That is good news. I’m waiting to be surprised on the good side. It’s been a long time.


Christy Hardin Smith | Thursday September 10, 2009 06:17 am 15
In response to jayt @ 7

It really has been in so many ways since O’Connor’s retirement. Which really makes me wonder whether there is something about Sotomayor’s approach to jurisprudence — that meticulously detailed method of arguing — that might have been part of her appeal as this first selection. Because Kennedy also tends toward the methodical.


JimWhite | Thursday September 10, 2009 06:17 am 16

I found this part of your Sotomayor quote pleasantly surprising:

that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with,

It’s my understanding that she has sided with the corporations fairly often, but if she is willing to take on the concept that corporations as persons is a “mistake” that would be a wonderful development.


ghostof911 | Thursday September 10, 2009 06:19 am 17

This may be totally irrelevant, but although SCOTUS wants to grant the rights of the individual to the corporation, there is one distinct difference between the two. The individual, in most cases, has a conscience; the corporation does not.

The cases where an individual no longer has a conscience is where the conscience has been sold for filthy lucre. If there on members on SCOTUS who have already made this sale, this argument about conscience would be completely over their heads.


eCAHNomics | Thursday September 10, 2009 06:21 am 18
In response to JimWhite @ 16

That is pretty amazing coming from Sotomayor, and not at all what I would have thought she’d say.


ghostof911 | Thursday September 10, 2009 06:22 am 19

JimWhite

Apparently we shared the same thougtht wave at the same instant.


klynn | Thursday September 10, 2009 06:23 am 20

Christy,

A few of those comments are almost right from our dialogue here yesterday. Like 4, 6 and 8! And actually, 1 and 2, (as noted in your comments above with dakine01.)

Hmmmmm…


eCAHNomics | Thursday September 10, 2009 06:26 am 21
In response to dakine01 @ 2

Why can’t foreigners muck about with U.S. elections? The U.S. goes out of its way to fix elections in lots of other countries. Isn’t turnabout fair play?


klynn | Thursday September 10, 2009 06:26 am 22
In response to klynn @ 20

And we had a bit of a discussion here yesterday about #4, that a corporation is not an individual because of the state and courts needed role; whereas, an individual can “be” no matter the state or courts opinion.


eCAHNomics | Thursday September 10, 2009 06:27 am 23

Coffee’s gone. Off to other matters. Be good everyone.


plunger | Thursday September 10, 2009 06:29 am 24

Whereas an entire foreign country, Israel, through its US-based surrogates/agents-of-influence (AIPAC), already does fund and control every single “representative” in both the House and Senate – using US taxpayer money, laundered (round-tripped) under the guise of “foreign aid” and recycled directly back into the pockets of the bribed and blackmailed enablers (Congressman), why not just go all the way to FASCISM, as mandated by the Supreme Court, and stop pretending that America is still free and/or brave.

David Rockefeller wins – you lose.

Gameoverville.


WNCBlue | Thursday September 10, 2009 06:29 am 25

There’s another distinct difference (two, really): when a person breaks the law, the state can deprive him of liberty and (sometimes) his life.

When a corporation breaks the law, investors lose money.


SouthernDragon | Thursday September 10, 2009 06:30 am 26
In response to JimWhite @ 16

OT – you might want to check this out and pass it along. Scroll down to the Tampa bit.


Christy Hardin Smith | Thursday September 10, 2009 06:30 am 27
In response to klynn @ 22

All of these were the open-ended questions not fully addressed in the briefs filed with the Court as well. This case is an enormous amount of shades of gray on governmental interests, First Amendment rights and where and how all of them attach — as well as how narrowly can something be tailored to allow for exercise of all the competing interests including that of the public to have a government that isn’t bought and paid for by the highest bidders.

This has enormous implications for all of us, depending on how the decision does or does not come down in the end.


foothillsmike | Thursday September 10, 2009 06:32 am 28

When a corporation breaks the law, investors lose money.

When a corporation breaks the law it gets fined and the corporation raises its rates to consumers to cover the cost.


mntleo2 | Thursday September 10, 2009 06:33 am 29

One of the compelling this I think about being so concerned about shareholders’ “freedom of speech” issue. If they are Americans (and perhaps many of them are not) then they already have their *own* individual right to freedom of speech, they do not need another one. And who the HELL are we to give non-American shareholders any such right to pay legislators to do their will because they would be grouped in with American citizens, right?

Just asking …

Cat in Seattle


Christy Hardin Smith | Thursday September 10, 2009 06:33 am 30
In response to foothillsmike @ 28

I wish I could raise my rates to cover my costs every time that happens. *g*


JimWhite | Thursday September 10, 2009 06:33 am 31
In response to SouthernDragon @ 26

Thanks. That graphic speaks volumes.


TarheelDem | Thursday September 10, 2009 06:33 am 32

Am I wrong in thinking that Sotomayor’s statement gets to the heart of the matter?

I know that the response will be “freedom of association”, but association does not imply personhood of the association, does it?

I know it’s wishful thinking, but it would be nice if the Court undid the corporations as persons with rights of human persons nonsense.


klynn | Thursday September 10, 2009 06:33 am 33
In response to WNCBlue @ 25

We can take this further. There are many government regulatory elements to the creation of a corporation. If a corporation is an individual, then to “level the field” between corporation and individuals we will need the government to create reproductive regulations for men and women as to how, when, where, and why we have intercourse and whether we are allowed to proceed with such activity in order to conceive and birth…an individual.

Now some on the court actually want that much control of our private lives.


ghostof911 | Thursday September 10, 2009 06:34 am 34
In response to eCAHNomics @ 21

We’ve had mixed success in that department. In 1970 the CIA pumped tons of money into the Chilean election to defeat Salvador Allende, but he still won. The CIA had to resort to finishing him off in a coup d’etat on September 11, 1973.


SouthernDragon | Thursday September 10, 2009 06:34 am 35
In response to foothillsmike @ 28

Yep and they are still pushing to limit the rights of consumers to sue them. Medical malpractice is not the only thing covered in calls for “tort reform.”


DWBartoo | Thursday September 10, 2009 06:35 am 36
In response to WNCBlue @ 25

Good morning, all.

A corporation … feels no pain,
suffers no doubts,
cannot be imprisoned,
and has the potential of being, essentially, immortal.

How is that not fair to flesh and blood human persons?

Some people at the “top” are having “problems” with this “issue”.

It won’t go away.

How strange. How very strange.

DW


SouthernDragon | Thursday September 10, 2009 06:35 am 37
In response to JimWhite @ 31

You betch’um, Red Ryder. Brand new rig. Nelson and LeMeiux can kiss my ass in the county square at high noon.


TarheelDem | Thursday September 10, 2009 06:36 am 38
In response to WNCBlue @ 25

Investors lose money in the bankruptcy dodge, and the officers and executives who violated the law reincorporate with impunity.


SouthernDragon | Thursday September 10, 2009 06:37 am 39
In response to DWBartoo @ 36

Hey, DW, nice to see ya. Out the door.

Namaste


perris | Thursday September 10, 2009 06:37 am 40

I just see the entire discussion as flawed;

an entity does not have to incorporate, that’s their choice because they are given protections not otherwise available

the government sets the rules of the game, just like baseball, football, etc, you join a team you give up some of your rights contractually

the same must be true for corporations and I think the entire debate was framed the way corporatists wanted it framed

nal


ART45 | Thursday September 10, 2009 06:38 am 41

I say, restrict all but approved political speech.

Who’s going to do the approving? I’m sure there won’t be any shortage of candidates.

Less, good speech is always better than lots of messy chattering.

People, after all, need to be told what to think.


DWBartoo | Thursday September 10, 2009 06:38 am 42
In response to SouthernDragon @ 39

Likewise, SD.

Namaste


Christy Hardin Smith | Thursday September 10, 2009 06:38 am 43
In response to mntleo2 @ 29

The counter-argument on that — voiced, I believe, by Chief Justice Roberts is that shareholders get to vote management out that isn’t protecting what they perceive to be int he best interests of the corporation if they fund political actions that aren’t productive. But, honestly, shareholder protest actions don’t exactly make enormous headway for the most part.

Which was Justice Ginsburg’s point in rebuttal: that at least union members can opt out of their dues being used for political purposes. Neither consumers nor shareholders have that “opt out” provision in place. And a lot of both are not educated as to what is being done with their funds because they hold shares through diversified mutual fund portfolios and haven’t educated themselves about individual stances and/or are buying whatever is cheapest instead of concentrating on the politics of the company involved.

Roberts’ response was protecting these folks was paternalistic on the part of the government, and that they should just educate themselves. Which would be all well and good if people do that — but think about how hard it is to just educate voters on issues during an election cycle. And then see how wads of money could enable a corporation or other entity to do just that in a not-fully-informed-and-manipulative way in their bottom line best interest rather than for the public’s fully informed, honest facts interest.


ghostof911 | Thursday September 10, 2009 06:38 am 44
In response to TarheelDem @ 32

it would be nice if the Court undid the corporations as persons with rights of human persons nonsense.

Question for each SCOTUS member: Ever try to have sex with a corporation? If you can’t have sex with it, how can it be a person?


foothillsmike | Thursday September 10, 2009 06:38 am 45
In response to SouthernDragon @ 35

I think some of the corporations need tort reform. Call it applying RICO laws.


Christy Hardin Smith | Thursday September 10, 2009 06:40 am 46
In response to WNCBlue @ 25

Exactly so — although corporate officers can be imprisoned for their individual wrongdoing, the corporation itself cannot be.


lefttown | Thursday September 10, 2009 06:40 am 47

I was struck by something Olbermann said last night. Something to the effect of “granting corporations all the rights of citizenship but none of the repsonsibilities.”


Christy Hardin Smith | Thursday September 10, 2009 06:41 am 48
In response to ART45 @ 41

I’m sure Thomas Paine might have had any number of things to say about that. *g*


ekunin | Thursday September 10, 2009 06:44 am 49
In response to ghostof911 @ 17

Corporations are individuals who control lots of money not their own. Desire for profit inspires these individuals to spend to maintain their positions. In one sense the argument resembles those cases which claim local property taxes are an unconstitutional means to finance school systems because rich communities can spend more than poor ones. Courts which found this method of funding education unconstitutional (a denial of equal protection) are ignored. Property taxes continue to fund education long after using them to fund education has been held unconstitutional.

Money will get itself heard no matter what the court decides.


foothillsmike | Thursday September 10, 2009 06:44 am 50
In response to ghostof911 @ 44

I don’t know about that corporations have been fucking people for a long time. *g*


Sufilizard2 | Thursday September 10, 2009 06:44 am 51

I think corporate personhood is a major problem that needs to be addressed – and from my understanding it’s all based not on precedent but a head note from a 19th century SCOTUS decision. But I’m far from an expert on these matters.

But that argument aside, I think the court needs to address the reality that placing no limits on corporate “free speech” in effect gives them more rights than you or I. The whole line of thinking that we can’t limit their rights inevitably leads to the view that wealth somehow gives your opinions more weight than someone who doesn’t have as much money. Because that’s the end effect of such a libertarian point of view.

Before radio and television, the advantage wasn’t as great – a rich person might be able to project an air of credibility by being dressed better standing on his soap box, but he couldn’t necessarily reach more people.

There was an expense involved in printing pamphlets, but it seems in our early history even people who weren’t particularly wealthy managed to get pamphlets published. I don’t think it compares to today’s environment where you or I couldn’t dream of buying an hour of time on a national network. But corporations can.

And so the essence, the absence of campaign finance laws gives unfair advantage to the very few at the expense of the many.

But I’m no lawyer, so maybe it’s not as simple as I see it.

I’m heartened by Sotomayer’s comments though.


perris | Thursday September 10, 2009 06:44 am 52
In response to ART45 @ 41

we’re talking about corporations not people, corporations need enjoy no rights of people, lest they can always decertify their limitation


klynn | Thursday September 10, 2009 06:45 am 53
In response to DWBartoo @ 36

Corporations cannot be adopted.

They can be bought out, merged or closed.

Again, is the court going to level the playing field between corporations and individuals and create legal justifications for individuals being “bought out”?

I know a few parents who would dissolve their parental relationship with their teens and may perhaps buy out our kids. s/


ghostof911 | Thursday September 10, 2009 06:46 am 54
In response to foothillsmike @ 50

great comeback.

Better question for the right-wing SCOTUS freaks: Do you know what sex is?


orcatjf | Thursday September 10, 2009 06:47 am 55
In response to TarheelDem @ 32

I’m with you on that, plus this whole money=talk thing where cash is regarded as free speech. That’d be nice if everyone had the same ability to money that we all have to talk. How did that come to be, that giving money to buy politicians was equated to free speech?


klynn | Thursday September 10, 2009 06:47 am 56

Unfortunately, Sotomayer’s comment could go in a direction none of us expected and that Roberts would adore.

Which could explain a great deal of Roberts’ interest in this case.


perris | Thursday September 10, 2009 06:47 am 57
In response to ekunin @ 49

Corporations are individuals who control lots of money not their own

corporations are NOT “individuals” they cannot go to jail if they murder your mom yet they can indeed murder your mom

this is supposed to be a government for people and by people, not for entities and certainly not by entities


oldgold | Thursday September 10, 2009 06:47 am 58

Roberts reminds me of some law professors I had. Very bright, but clueless as to how the world works.


foothillsmike | Thursday September 10, 2009 06:48 am 59

If corporations were like people why do they have special priveleges like say in bankruptcy court.


klynn | Thursday September 10, 2009 06:49 am 60
In response to perris @ 57

That sounds like a health care reform argument.


Sufilizard2 | Thursday September 10, 2009 06:50 am 61
In response to ghostof911 @ 44

Not a good line of reasoning, because I’m sure most of us have been screwed by a corporation at some point in our lives.


ekunin | Thursday September 10, 2009 06:51 am 62
In response to perris @ 57

A corporation cannot murder my mother. A corporation cannot murder anyone. If the people running a corporation do damage (ie pollute) they can be held accountable, though they usually are not. But that’s just money talking again.


Christy Hardin Smith | Thursday September 10, 2009 06:51 am 63
In response to ghostof911 @ 54

Seriously? That’s not a better question.


klynn | Thursday September 10, 2009 06:52 am 64
In response to klynn @ 60

Yeah,

To think about it, isn’t every individual in the US a financial corporation? SO, where is my bailout cash?

@61

Metaphorically “do it” does not result in a conception. s/


Christy Hardin Smith | Thursday September 10, 2009 06:53 am 65
In response to oldgold @ 58

He does have that “still in the crinkly wrapper” newness feel to his questions, doesn’t he? As though he’s never tried to step out and get his hands dirty.


perris | Thursday September 10, 2009 06:53 am 66
In response to oldgold @ 58

he knows how the road works, he decides in favor of those who destroy the roads if they are corporations, against those who destroy roads if they are not corporations

he knows what he’s doing, he’s deliberate, with a purpose and knows no boundaries to help him decide on behalf of a corporation


Raven | Thursday September 10, 2009 06:54 am 67

Tummy issues.


Christy Hardin Smith | Thursday September 10, 2009 06:54 am 68
In response to Raven @ 67

Ahhhh! That makes sense. LOL

Am feeling better today, thanks. And I needed that giggle.


ghostof911 | Thursday September 10, 2009 06:55 am 69

I meant in the sense of their coldness and sterility. That type of temperment isn’t quite conducive to having close interpersonal relationships, IMHO.


mntleo2 | Thursday September 10, 2009 06:56 am 70
In response to lefttown @ 47

Yeah wonder that as well. As “citizens” one of the points that should be said then needs to be, WHY aren’t they given the death penalty when they pollute and kill hundreds of citizens? If they rip off thousands of people as the mortgage and banks did ~ why aren’t they put in prison or some corporate facsimile of that?

If any individual citizen did any of that, we would have to face the same thing. Perhaps we need a whole other set of laws for these “citizens” that spell out similar consequences that an individual citizen would face if they break the law.

Cat in Seattle


orcatjf | Thursday September 10, 2009 06:56 am 71

so, if this all goes against real people, and limits are removed and corporations can officially own the government, what can we do about it? Can we change it? Do we need another Abraham Lincoln to re-instate the “for the PEOPLE, of the PEOPLE, by the PEOPLE” idea?


perris | Thursday September 10, 2009 06:57 am 72
In response to ekunin @ 62

A corporation cannot murder my mother. A corporation cannot murder anyone. If the people running a corporation do damage (ie pollute) they can be held accountable, though they usually are not. But that’s just money talking again.

of course a corporation can murder your mother, they do it all the time, they murdered my mother thruogh their depraved corporate decisions and no, nobody was prosecuted, the corporation was not decertified

if you don’t think a corporation can murder your mother there is no discussion left with you, it’s like you saying water cannot be wet, yet wet it is


foothillsmike | Thursday September 10, 2009 06:58 am 73

If corporations are people does that mean that people can set up dummy people in the Cayman islands, shift their income there and not pay taxes.


Christy Hardin Smith | Thursday September 10, 2009 06:59 am 74
In response to foothillsmike @ 73

That one needed a spew alert. ROFL


klynn | Thursday September 10, 2009 07:01 am 75
In response to foothillsmike @ 73

I like that better than my request for my share of bailout bucks! s/

Too funny!


Raven | Thursday September 10, 2009 07:01 am 76
In response to foothillsmike @ 73

Plastic people
Oh baby!
You’re such a drag

(I hear the sound of marching feet . . . down Sunset Blvd. to Crescent Heights, and there, at Pandora’s Box, we are confronted with . . . a vast quantity of PLASTIC PEOPLE.)

Take a day
And walk around
Watch the nazis
Run your town
Then go home
And check yourself
You think we’re singing
‘Bout someone else . . . but you’re

Plastic people!
(Woooooooooooooooooooh!)
Oh baby, now . . .
You’re such a drag

f zappa


foothillsmike | Thursday September 10, 2009 07:04 am 77

Sorry bout that.


ghostof911 | Thursday September 10, 2009 07:05 am 78
In response to Raven @ 76

long live zappa


DWBartoo | Thursday September 10, 2009 07:05 am 79
In response to ghostof911 @ 44

I’ll have you know, ghost, that respectable corporations only have “relations “with other respectable corporations.

(Did somebody say “unholy alliances’?)

However, most corporations remain celibate out of choice, of course.

(America’s true gift to the world, is the creation and empowerment of the corporation).

Above the vicissitudes of mere flesh and blood, corporations will boldly (if not bodily) go where no man has gone …

Corporations are the true expression of “bi-partisanship”, ‘cuz it doesn’t matter what yer polltyicks are, you only have to love money to join in the fun,

Clearly, the next step in the evolution (or “intelligent design”) of corporations will be the religious-corporation.

Such corporations will have daily chats with the big CEO in the sky, kind of like our nation’s beloved Presnit George used to do.

And nobody will find it strange, in the least.

In the Age of the Divine Right of Money, it is only prudent for corporations to “get” religion.

Let the good times roll!

(Snark and Boojums for entertainment porpoises only …)

DW


NorskeFlamethrower | Thursday September 10, 2009 07:10 am 80

Citizen Hardin Smith:

Thom Hartman had some historical perspective on the 1880’s case out of California that has come to define the “corporation as person” lie…it appears that some time after the arguments and the announcement of the decision, the “secretary” for the court covered a copy of the decision with the words that the chief judge had declared for the railroads argument of personhood when in fact he had not. The chief judge unfortunately dropped dead a couple a days after the verdict and no one corrected the false reporting for 120 years.

Now tell me again about our system of justice and due process and “the rule of law”…the whole rotten mess is goin’ south “…not with a bang but a whimper.” Even if Justice Kennedy manages a moment of intellectual honesty and moral courage, the entire structure of our governance and the relationship of wealth to the populace has been corrupted since that moment in 1883 (I think it’s ‘83, might be ‘87…whatever).


DWBartoo | Thursday September 10, 2009 07:14 am 81
In response to NorskeFlamethrower @ 80

Yeppers, Norske, “corporate person-hood” be one of the strangest tales that never was told …

Too much “exceptionalism” goin’ on, must be?

DW


oldgold | Thursday September 10, 2009 07:16 am 82
In response to NorskeFlamethrower @ 80

A decade later the same neanderthals gave us Plessy .v Ferguson.


perris | Thursday September 10, 2009 07:25 am 83
In response to DWBartoo @ 79

Clearly, the next step in the evolution (or “intelligent design”) of corporations will be the religious-corporation.

that’s the “nex step”?

swaggart would tell you that’s a step long ago taken


realworld | Thursday September 10, 2009 07:27 am 84

Has anyone done a count of how many questions each side got? Apparently this is a good indicator of how the decision will go.


DWBartoo | Thursday September 10, 2009 07:30 am 85
In response to perris @ 83

And, Swaggart (bless his sweet little heart) would be right.

(BTW, your Les Paul adventure, was very much appreciated on a number of levels, and came immediately to mind when I heard of Paul’s death, it being so typical of the man. DW)


TarheelDem | Thursday September 10, 2009 07:33 am 86
In response to orcatjf @ 55

I believe that came about because the money was going to politicians to buy media time to spout the views of the donors. Or in the case at hand, the donors bypassed the politicians completely and aired a hit job under their own corporate name (the front group being the corporation in question).


perris | Thursday September 10, 2009 07:39 am 87
In response to DWBartoo @ 85

I cried when I heard he passed, I’d recieved dozens of calls telling me how and when he moved on.

quite a man, never tired of giving

let me correct that, he lived to give


BargainCountertenor | Thursday September 10, 2009 08:11 am 88
In response to foothillsmike @ 73

Actually, isn’t that precisely what all the Kabuki drama with Switzerland and UBS has been about? Or did my browser miss a snark tag?

OT: We ought to develop some typographical convention for denoting snark.


BargainCountertenor | Thursday September 10, 2009 08:13 am 89

Justice Stephen Breyer said the compelling argument is that “people think representatives are being bought.

That may be what Mr. Justice Breyer said, but the truth is, “We know representatives are being bought.” Painful? Yes! True? Yes, it’s twoo, it’s twoo. I could hold Senator Baucus up as a test case.


perris | Thursday September 10, 2009 08:19 am 90
In response to BargainCountertenor @ 89

that’s a great point bargaincountertenor, great


Ann in AZ | Thursday September 10, 2009 08:20 am 91
In response to BargainCountertenor @ 89

It’s not just Reps., Durbin said on the floor of the Senate, “The Senate is owned by big banking interests!” We all know that corporate ownership of our Congress is a major problem and the reason why there will probably never be campaign finance reform unless all incumbents are removed from office.


BargainCountertenor | Thursday September 10, 2009 08:32 am 92
In response to Ann in AZ @ 91

I was using the term generically. Congresscritters and Senators, State Representatives, Assemblycritters, Senators, County Supervisors and City Councilcritters, from the top all the way down.


sbvpav | Thursday September 10, 2009 09:04 am 93

the crossroads our country has come to is no more and no less between if our government is “for the people, by the people and of the people,” or we are the united corporations of america.

as in the health care reform debate, it is now all too clear for those willing to look, the two diametrically opposed sides are progressives on one side who want to do something to help the people and our country and those on the other who are protecting their corporate sponsors and their own campaign coffers.

all the many complex and inter-connected challenges facing our country will not be resolved unless and until we have public financing for all elections; otherwise those we elect to represent us are in fact representing those who paid for them not voted for them.


cinnamonape | Thursday September 10, 2009 09:23 am 94
In response to mntleo2 @ 29

Kennedy

: Court’s 1976 decision in Buckley v. Valeo, finding constitutional free speech rights in political spending by all sources, corporations included. And he said those precedents meant that corporations would be “silenced” when they had contributions to make to public policy by speaking out during campaigns.

I agree with you view, Cat. Corporations don’t get “silenced” by restrictions…those individuals that compose the corporation have unextinguished rights. The Bill of Rights deals with the rights of INDIVIDUALS (with one explicit exception…the Press). If one expands those rights to corporations then it opens the door to foreign influence…including that of foreign governments, like China, who have large stakes in many corporations. It also suggests that even government agencies and groups could push candidates or issues by using public funds. They are also “corporations”.

This was what was the basic problem with the conservative Justices creating these precedents in the first instance. They walked away from the Constitution. Now they have a ster s decisis issue of their own creation


DWBartoo | Thursday September 10, 2009 09:25 am 95
In response to sbvpav @ 93

May the truth of your words take root in the hearts of all fellow citizens who are determined to live in a genuine representative democracy?

I would hope we might go a step further … someday … and insist upon actual participatory Democracy.

(As long as I’m dreaming … and hoping …)

DW


cinnamonape | Thursday September 10, 2009 09:32 am 96
In response to ekunin @ 62

The “mob” is a corporation…and corporations CAN kill people in ways that the individuals that make them up would never be able to undertake as individuals.


earlofhuntingdon | Thursday September 10, 2009 09:53 am 97

The courts were wrong when they originally caved into the railroads, the first great American corporations, and their persistence demands that corporations-as-legal-entities be allowed the status of legal persons. That gave the legal fiction of a corporation greater license to make money at the expense of real persons. Roberts and his neocons would extend that license without restraint. They would be wrong to do so; it could cause greater harm to what’s left of representative democracy than did Dick Cheney.

Corporations have adopted the Skilling Rule of making money, aka the Neo Pinto Rule. It’s a variation on the Nixon Rule that it’s not illegal if the president does it, and the Cheney Rule that not getting caught in a lie is the same as telling the truth.

To wit, the Skilling Rule is that anything that makes money is per se legal unless the government catches you at it, forcibly stops you from doing it, and the cost of that exceeds the cost of having done it. Lobbying expenses should be looked on in that light, because they lead to rigging the system to avoid the first and second requirements, which assures that the third requirement is never met.

It’s also the Neo Pinto Rule because it mimics the reasoning and social priorities of Ford executives in the early 1970’s, reasoning and priorities that are now commonplace.

Those savvy executives chose to sell Pinto cars with knowingly faulty gas tanks. Those tanks leaked and caught fire when involved in foreseeable, statistically common traffic accidents. Their reasoning was based on simple arithmetic. Giant Ford and its giant insurers – both corporations and legal persons – could manipulate dispute resolution processes to such an extent that the cost of paying the dead and burnt was less than the cost of correcting the design of the faulty gas tanks.

As legal fictions, those corporations couldn’t be sent to prison, only fined by the criminal law. And how do you determine the necessary mental intent to do harm in a legal fiction? The only other remedy was tort law, which favors the wealthy and powerful because of the time and cost involved in pursuing remedies for social harm, and which the neocons have waged a generation long war to gut.

There are limited tools to restrain excessive behavior by non-living legal persons who follow ruthless social rules and narrow economic self-interest. The restraints pale against their ability to fight or evade them. Allowing them greater legal rights – as if they were real people – could only come at the expense of real people.

If it does so, the Roberts court will extend an activist decision by an earlier court by gutting a sound decision by another. It will be shouting from the rotunda to other neocons that money is more important than people. And why not? Obama did that in bailing out the banksters by asking for nothing in return. Congress may do the same by rewarding the insuresters by legally mandating that we buy their leaky, unreformed and unregulated insurance.

Those priorities demonstrate why the Roberts court would be wrong to give corporations greater political and social rights, and why it will do it anyway.

Unless and until the legislatures redefine corporate responsibility to give corporations the responsibility of being good citizens, until they are required to place other priorities ahead of making money, they ought not to have greater legal rights. They should have fewer.


ekunin | Thursday September 10, 2009 09:55 am 98
In response to perris @ 72

I am not saying people who run corporations (and their underlings) cannot do much, perhaps fatal harm. The claims adjuster who denies medical treatment does what he or she has been told. He wants to keep his job. That spur has many of us living lives we wouldn’t lead were we financially independent. Corporations don’t kill. People kill. It may be they kill to further corporate aims, but our emphasis on corporations allows us to overlook individual responsibility. I agree, though, that water is wet.


ekunin | Thursday September 10, 2009 10:00 am 99
In response to DWBartoo @ 95

With electronic technology actual participatory democracy is possible today. It won’t happen by itself. How we might cooperate to make it happen is something we should discuss, but don’t seem to care to.


ekunin | Thursday September 10, 2009 10:01 am 100
In response to cinnamonape @ 96

Specifics please


Ann in AZ | Thursday September 10, 2009 10:16 am 101
In response to ekunin @ 100

How about all those people that died when a relatively new building collapsed due to faulty workmanship and inferior building products used. That was a decision made by the corp, not one individual.

Other examples, bridge collapses, pets dying because a Chinese corp used products in their pet food that killed them, etc….


ekunin | Thursday September 10, 2009 10:30 am 102
In response to Ann in AZ @ 101

That was not a decision made by a corporation. It was a decision made by individuals employed by the corporation. BTW the Chinese have an interesting way of treating business people whose greed kills people (ie adulterated milk). They take them out and shoot them. There’s a lot to be said for that. My point is that when we perceive the corporation as distinct from the individuals that run it, we lose sight of some pretty obvious solutions.


earlofhuntingdon | Thursday September 10, 2009 10:41 am 103

It’s extraordinarily hard to prove criminal intent within a group or association. Legal personality apart, that’s all a corporation is, except that legal personality allows the group to exist, unlike a partnership, independent of which specific people make-up of that group. That was be design: railroad companies were big movers and shakers in establishing the rules for corporations as well as in refining early tort laws.

The latter was a natural outgrowth of their urge for profits and the fact that making and running what was then the largest, heaviest, most complex and fastest moving machinery in existence. Lest we forget, large pieces of iron and steel, moving quickly, subject to fire and extreme pressure, explode and hit things at regular intervals. Lines, bridges and trestles engineered over once insurmountable landscapes fail.

Protecting corporate profits has long meant managing the legislatures that define liability and the judges that enforce the rules they write.


Hugh | Thursday September 10, 2009 10:51 am 104

Re the CItizens United case, what burns me is how corporate personhood which has no basis in the Constitution plays into this. On the one hand, if the formulation of a corporation as person benefits corporate interests, the corporation is portrayed in terms that might describe your next door neighbor. On the other hand, the great powers and resources that many corporations have, which make them completely unlike your neighbor or you, are simply ignored.

Consider if campaign activities by corporations were banned. This would not preclude members of corporations from organizing PACs as they do now. It would not keep them form lobbying Congress and the White House as they do now. They might not be able to arrange fundraisers, but the PACs could, and they could still showcase how getting what they wanted would create jobs, etc. in states and Congressional districts.

Also does anyone besides me see the irony in speech which is paid for being termed “free” speech?

Finally, one of the great accomplishments of the blogosphere is that it has allowed us to look past the crap media and bring into focus what is what and who is who in our society. We are seeing as the really unlikeable Ralph Nader said that both major parties represent primarily corporate interests. But we are seeing too that the allegiance of the Roberts Court beyond its Republicanism and radical conservatism is just another footsoldier in the defense of American corporatocracy.


DWBartoo | Thursday September 10, 2009 10:51 am 105
In response to ekunin @ 99

It is indeed possible, ekunin, the question is this: Are the people actually willing, “now”, to engage, seriously and wholeheartedly, in the adventure of becoming?

Arguably, our species cannot survive unless many more people (human beings, not corporate “persons”, just to be perfectly clear) “become”.

Become responsible for being aware, conscious and thoughtful about virtually everything …

Become educated, not to earn big bucks, or wield unfettered power, but that they may understand … as much as possible … about virtually anything.

Become responsible stewards of a world which already belongs to their children.

Become aware that human beings actually create their own reality, and quite as much by what they tolerate, as by what they imagine.

And simply, people must become able to discern when they are being manipulated as well as deliberately choosing to refrain from manipulation themselves.

When?

“Sometime” … perhaps?

DW


ekunin | Thursday September 10, 2009 10:55 am 106
In response to earlofhuntingdon @ 103

That’s true to an extent. Circumstances alter cases. Take the case of Halliburton or one of its subsidiaries. They installed faulty electrical systems in bases in Iraq. Supposedly more than 20 servicemen were electrocuted. It should be possible to assign responsibility. Those responsible should be punished. Doesn’t seem like that’s happening. That’s another story.

A legal doctrine “pierces the corporate veil” when the corporate form is used fraudulently. We should think in terms of piercing the corporate veil for other wrongs. I grant it is difficult to assign blame when great effort has been expended to conceal the miscreants. However we work that out, we can’t begin until we see a corporation as the people who operate it.


ekunin | Thursday September 10, 2009 11:12 am 107
In response to DWBartoo @ 105

Each of us has a theory. I call mine “collective image psychology”, the collective image being our concept of “human nature”. We, generally don’t think much of ourselves. The negative appraisal inspires some to try to distinguish themselves by accumulating money and the things money buys. The rest of us think those with money are “better” and because they are “better” (read “smarter”) we follow their lead gladly. It boils down to my claim that we have literally been driven crazy by inferiority. Nothing anyone does in this life supports a finding of greater or lesser. We all die. There is no hierarchy in the cemetery.

As for participatory democracy, we are not ready at this point in time, but we can create sites on a town by town basis. I suggested putting town’s check books on line as a way to get townspeople to visit the site. Perhaps someone can think of something else that might interest people on a local level. This requires creating the site, servers to carry the site and an advertising budget to let people know the site exists. It’s a large undertaking but we have no alternative other than more of politics as usual.


Hugh | Thursday September 10, 2009 11:29 am 108
In response to DWBartoo @ 105

Beautiful ideas, wonderfully expressed.


jonerik | Thursday September 10, 2009 11:37 am 109

I once read a law review from the 1930’s or 1940’s which plausibly argued the “conspiracy theory of the 14th amendment” namely that the drafters of the amendment had deliberately chosen the term “person” in the due process clause, as opposed with “citizen” in the Privileges and Immunities Clause because they wanted to extend the due process and equal protection clauses to corporations in the new Union after the Civil War. I don’t buy this because I have read other sources who said a number of drafters were surprised when their use of the term “person” was twisted to mean something other than a human being.

The Supreme Court has never seriously confronted overruling the case of
Santa Clara Co. v. South. Pacific R. Co., 118 U.S. 394, 396 (1886) but several justices have forcefully advocated doing so, like Black and Douglas in their dissent in Wheeling Steel Co. v. Glander, 337 U.S. 562 (1949). It’s probably dreaming to think that could happen but overruling the doctrine that “corporations” are “persons” under the US Constitution would open a new era of justice.
http://caselaw.lp.findlaw.com/…..;invol=562


DWBartoo | Thursday September 10, 2009 11:45 am 110
In response to ekunin @ 107

Well spoken truth.

Please expound further on your theory, “collective image psychology”, as I’m certain it will find much resonance.

I agree this larger conversation NEEDS to go forward.

I also agree that there appears but little interest in that conversation.

Yet, once begun, such conversation may well develop a “life” of its own.

The time is ripe, ekunin and you are a keen observer of the human “condition”.

I look forward, with considerable delight and anticipation, to your thoughts.

DW


ekunin | Thursday September 10, 2009 12:04 pm 111
In response to DWBartoo @ 110

If you click on my name that takes you to my web site. If that doesn’t work go to http://www.egalite.com

Depending on how much you want, my as yet unpublished book (I self published 25 copies in 1995 and still have some left) is on the site. Be glad to discuss these issues with you. my email is [email protected]


earlofhuntingdon | Thursday September 10, 2009 12:45 pm 112
In response to ekunin @ 106

We need to rethink the warp and weft of that veil when it enables widespread harm.


Teddy Partridge | Thursday September 10, 2009 12:57 pm 113

Christy, why no quotes from the esteemed Justice Thomas?? *g*


racetoinfinity | Thursday September 10, 2009 01:18 pm 114

I’m in favor of NOT extending more rights to corporations (which are NOT persons, despite the odious 19th century ruling by a U.S. court). The public’s perception that Congress is bought is correct – we need public financing of campaigns; then, every interest group and people would have fairly equal access to getting their messages across.

It will be interesting to see how Glenn Greenwald comes out about all of this. He is a great supporter of the ACLU, which I am, too, except in certain cases like this one. On the other hand, he is fully aware of the corrupting infelunce of big corporate money in our Congress.


michtom | Friday September 11, 2009 05:42 pm 115
In response to eCAHNomics @ 21

The essence if imperial power: Do as I say, not as I do.


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