by Jerome Armstrong, Thu Feb 11, 2010 at 07:25:38 PM EST
During the Citizens United proceedings, when Justice Sotomayor breached the idea that perhaps this personhood application to corporations is what needs to be reviewed by the Court, I about started clapping while I was driving up the NJ Turnpike and listening to the proceedings. That's the real issue here, which is going to take at least another couple of Sotomayor's on the bench to reverse.
But that's a ways away, and in the meantime, Lawrence Lessig email that:
The Democratic leadership in Congress just announced its response to the Supreme Court's decision in Citizens United, the case that struck down limits on independent corporate campaign expenditures.
Here's how Lessig breaks down the offerings and his reactions:
These are the changes the Democratic leadership proposes, and my view about each. As you read these, ask yourself: Will this change reform the fundraising Congress? Will it really make Members of Congress any less dependent on special interests?
(1) Ban foreign corporations from influencing elections.
This is a fine idea. Problem is that it is completely unclear how under the Supreme Court's reasoning this change would be constitutional. The Court said the First Amendment doesn't care who is trying to exercise the right to speak -- that the First Amendment simply limits the government's power to regulate speech. So how will it find foreigners have less freedom than corporations?
(2) Stop government contractors or TARP recipients who haven't repaid from political spending.
This selective regulation is Supreme Court bait: it wasn't imposed on TARP recipients when they took the money, and my bet is the Court views the government contractors limitation as too broad.
(3) Impose new disclosure requirements, so that the ultimate funder is exposed.
A perfectly fine regulation, but to what effect? Will the disclosure really make Members less dependent on the funders?
(4) Impose new disclaimers on TV ads.
Same point as above.
(5) Require candidates to have reasonable access to air time.
This is promising and important, though the Court has signaled increasing impatience with this sort of regulation. So again, an uncertain reform of limited effect.
First. I laughed out loud at the thought that SCOTUS would say foreigners have less power than corporations. The first provision is just the type of jingoistic law that I would expect from Republicans faking populism. It also makes no sense, given the global leadership of the US. Fake patriotism with a backwards mentality at its worst. The oly redeeming part of it is that we might see the Corporate 5 on SCOTUS have to defend personhood for a foreign-owned corporation (which they would too).
The second is pure CYA. They all voted to give the banks TRILLIONS of dollars through TARP and other financial giveaways, and are now trying to stem the rising populist tide that has been repulsed with the giveaway. Again, like the first, purely political and aimed at messing with the Corporate 5 in SCOTUS at best.
Three and Four are the only points, each of transparency, that have any substance in the measure. The more the better of this. And Fifth. Well, this is just a case of Congressional incumbents trying to reserve airtime without having to purchase it-- pure nonsense. Not exactly the sort of thing that Free Enterprise is made of either.
Well, like Lessing, I'm not impressed in the least with the offering of reform. Lessig backs the public financing legislation as an alternative. I still don't see how though, this is a solution to what SCOTUS laid out in favor of corporations.
But I've been lukewarm about public financing of campaigns, and have seen it crushed at the ballot in state after state, though a few examples of it working are out there. The best route is to instead force upon SCOTUS the definition of a corporation that limits the amount of power they are able to bestow to those corporations.
And by this, I'm basically talking about imposing upon the law a sharp distinction between corporations and persons. If that's an amendment process or just a changeover of one of those 5, that's what will be the real change. Consider this take:
Supreme Court Justice John Paul Stevens may have had his tongue in his cheek, or perhaps wanted merely to taunt the majority, when he wrote in Thursday’s opinion on the role of corporations in national politics: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” It is a tantalizing notion.
Suppose that General Motors Corp., troubled that a candidate for Congress from Michigan was too favorable to the United Auto Workers, decided to do everything in its corporate power to defeat that candidate. So, aside from spending huge sums of its own money (none of it federal bailout money) to influence the outcome, it went to the office of the voting registrar in downtown Detroit. It sought to sign up, affirming that it was a citizen and resident of Michigan. Denied registration, it sued, claiming that, under the Fourteenth Amendment of the U.S. Constitution, it was a “person,” and, as a “citizen,” it was entitled to equal protection under the election laws. Would the Supreme Court buy that?
...If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings.
At least in politics, the Court majority indicated, corporations have a voice, and they have worthy political ideas. Here is the way Justice Anthony M. Kennedy put it (partially quoting from an earlier ruling): “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”
...The rehabilitation of the corporate “person” almost certainly was a project that five of the Justices were prepared to embrace. It could be argued, indeed, that the Court put the case over to the current Term for a second argument, focused on corporation’s rights under the Constitution, as part of that project. There was not a hint that those five, in the end, were in any way moved by the suggestion at that second argument by Justice Sonia Sotomayor that the Court may have been wrong for a century about awarding “personhood” to corporations.