Posted by Brad @ 7:15 pm on January 23rd 2010

President Obama: “Campaign Finance Reform!”

Hey man, maybe you should just let this one go.


  1. Jim Geraghty had a good point about this:

    I think headlines two and three cancel out the problem suggested in headline one:

    One: RNC Cash Falls Further

    Two: In Landmark Campaign Finance Ruling, Supreme Court Removes Limits on Corporate Campaign Spending

    Three: Obama Seen as Anti-Business by 77% of U.S. Investors

    Let’s see . . . you’ve got a whole bunch of businesspeople who think the administration is trying to hurt them, a new set of rules that allows them to spend as much as they like communicating their messages, and a party that’s defining itself as standing athwart the Obama agenda yelling, “Stop!”

    Good luck getting bipartisan agreement on that, Obama.

    Comment by Adam — 1/23/2010 @ 7:53 pm

  2. What he should be doing is “corporation reform”. The law has to explicitly state that, though the construct of a corporation has an identity, it does not constitute a person which is assigned the same inalienable rights and privileges as a functioning intelligent being.
    And if we are going to define it as a person, then we should also recognize that all people are equal under the law, and that there should be no separate category under tax law for corporations. If they are people, then they should pay their taxes on income like people.

    If Obama starts pushing in that direction, I think the redefining of the corporate identity will run into few problems. “Do you want to pay higher taxes or do you want limits on corporate free speech?” “Speech! Limit out speech! Please don’t make us pay for anything!”

    I still can’t get over that radical ruling. The Roberts Court is way off the “keep the constitutional” path.

    Comment by thimbles — 1/24/2010 @ 2:22 pm

  3. Don’t corporations already pay generally higher marginal rates at every level of income? I suppose they get deductions, but then so do individuals.
    Hasn’t the argument been, for a long time, that one of the problems with our taxing of dividends (as normal income), is that it’s ‘double taxation’?

    Comment by Redland Jack — 1/24/2010 @ 2:38 pm

  4. Don’t corporations already pay generally higher marginal rates at every level of income?

    On paper, yes, but corporations, many of them large sized, don’t pay their share of taxes due to loopholes that are not available to physical citizens. This was the reason the AMT was created so that some tax revenue could be realized. This was ultimately refunded to poor companies like IBM because conservatives thought it “unfair”. if the corporation is a person then they should not be allowed the loopholes that prevent tax collection.

    And taxing dividends is taxing income since you are not taxing the principle amount of the investment, but the income derived from investment. Investment income is new money derived from old, not old money inflated.

    Comment by thimbles — 1/24/2010 @ 11:24 pm

  5. I can’t quite figure out where corporate personhood enters into the discussion. If I’m reading the decision and the principal dissent correctly (and I admit, I have only skimmed them), the SCOTUS justices on both sides don’t think it does either.

    The first amendment, as written, in no way addresses the nature of the speaker. It’s a blanket restriction on congress with regard to speech: “Congress shall make no law abdidging the freedom of speech”. As best I can tell, the political speech of an illegal alien or of a talking chicken would be protected.

    Comment by Rojas — 1/25/2010 @ 1:31 am

  6. Speech is a construct representative of thought. Thought is an action representative of mind. Mind is a characteristic reserved to those that have organs with which to think.

    Corporations do not have such organs, nor are the rights listed within the constitution intended to apply to creatures lacking basic qualities such as personhood, unless you believe the framers intended a militia of armed chickens.

    Protect the free speech of citizens. Corporations are not people, nor citizens, nor chickens. They are a Frankenstein monster created out of the necessities of enterprise. They do not require speech protection. If one equates speech with money, it will be us that will require protection from the speech their money can buy.

    Comment by thimbles — 1/25/2010 @ 4:04 am

  7. And yet corportions are made up of people, to include media corporations. And forgive me, but yoru first paragraph just sounds like a certain Jedi master’s post hoc rationalization for a desired outcome.

    Comment by Jack — 1/25/2010 @ 11:26 am

  8. Should it be legal to conduct a warrantless search of Monsanto’s headquarters? Should it be legal for the government to censor the New York Times editorial page? Can the government quarter soldiers in the offices of the CATO institute?

    Comment by Rojas — 1/25/2010 @ 12:18 pm

  9. And this is still bugging me:

    I still can’t get over that radical ruling. The Roberts Court is way off the “keep the constitutional” path.

    The only thing that was “radical” about it was that it was a pretty plain meaning literal read of the document. Where I think both liberals and conservatives fail in their understanding of the role of the judiciary is they get pissed off about rulings based on whether the practical effect will be desirable for them or not. And while the judiciary certainly considers the pragmatic impact of their rulings, that isn’t first and foremost their job. Nobody who is railing against this ruling is really arguing that what Citizens United was engaged in is illegal, i.e. nobody’s really disputing the facts of the case. Nor are people really disputing the principal constitutional finding—that the 1st amendment protects speech, full stop, and doesn’t distinguish between speakers. The second it does, “free speech” is no longer protected, only “free speech from desirable speakers”. It’s a pretty plain meaning sort of contention.

    What you’re essentially declaring as radical is the idea that, because you believe it would be beneficial to society, you think the court ought to have ignored the facts of the case and the clear constitutional meaning of the first amendment, solely for the sake of having the court create a pragmatic, i.e. legislative, effect. That that consideration, “is it a good idea or not?” is secondary to the simple question “is this legal or not?” That it’s up to the courts to decide what would be “good” for people rather than simply reconciling laws that other people passed (based on their proper authority).

    Which is the definition of activism. It’s not the court’s job to decide what would be good for us—it’s the court’s job to arbitrate law. A law can be bad and constitutional, just as it could be good and unconstitutional. The good/bad distinction is, inherently, a political one. The constitutional/unconstitutional is a judicial one. And frankly, if you believe it’s the court’s job to look out for our interests in a political way, well that works out for you just fine until precisely the point where you get a Republican president appointing a conservative judge to what had previously been a moderate or liberal judge’s seat. If a law is plainly unconstitutional, it is the duty of the court to say it, even if their saying it doesn’t jibe with what we wish were true. It is then the legislature’s job to go back and craft a new law in keeping with all the other laws of the country, or to amend the constitution. I know that’s hard, and usually prohibitively so, but that’s the system of laws we labor under, and the “looser” we make that system, the more up to the whims of politicians our entire system becomes (and, again, for you liberals, that will always include, at least half the time, people who you think do not have your best interests at heart).

    And btw, this was my same criticism for those screaming “radical” and “judicial activism” for, say, the MA same-sex marriage case.

    Oh, and one final thing on the practical effect of the case:

    1. We are not just talking about GE and Monsanto here. We are talking about the Sierra Club, the SEIU, the AMA, the NAACP, et. al. Again, you screw one, you screw everybody.

    2. I love how you already GRANT the corporations have the money to get around laws as fundamental as tax laws, but somehow that doesn’t apply to campaign finance. I also love the thought that, prior to this ruling, corporations were measurably restricted by this regulation. They were not. Corporate money has always and will always pool into politics. Prior to this, they just had to reach a certain critical mass of size, at which point they could form dummy PACs and wash their money through anyway. Two things:

    A. It was not GE and Monsanto that were fucked by McCain-Feingold, because they could afford to figure it out. It was people like me who did NOT have a team of lawyers and who could not afford to run afoul of the FEC. GE can take a 50k fine. I cannot. Campaign finance reform ABSOLUTELY has a chilling effect on free speech, but it is not, by and large, the giants of industry and the wealthy power-brokers who are chilled. It’s everybody else.

    B. If anything, by upholding the transparency requirements, this might actually have the net effect of making the system, practically speaking, a little bit better, in that the same corporate money will still be flowing, but instead of dummy PACs and shell organization, we’ll know at a glance right where it’s coming from. In theory anyway.

    Comment by Brad — 1/25/2010 @ 1:23 pm

  10. On paper, yes, but corporations, many of them large sized, don’t pay their share of taxes due to loopholes that are not available to physical citizens. This was the reason the AMT was created so that some tax revenue could be realized.

    The AMT is aimed at individuals and hardly affected any of them at the time it was legislated (150-odd familes, wasn’t it). I don’t know what additional fraction of government revenue it generated at the time it was passed, though; I can’t imagine it was that huge a deal, nor a solution to problems of corporate tax-avoidance.

    EDIT: Ooh, there’s a corporate AMT too, didn’t realise that. Ignore statements above.

    Comment by Adam — 1/25/2010 @ 1:46 pm

  11. I took thimbles “radical” comment to be less an endorsement of original intent than as a suggestion that the justices ought not to throw vast swaths of precedent out the window when they could rule more narrowly.

    In that sense, this was a radical decision. Of course, by the same standard Brown v. Board would be a bad decision.

    Comment by Rojas — 1/25/2010 @ 2:46 pm

  12. Fair enough then. That is true, but it was long in coming too.

    By the by, Glenn Greenwald is making the same point I am. “Unconstitutional actions can’t be justified because of the allegedly good results they produce.” Which always struck me as a truism, and intuitive to boot, but apparently isn’t. Anyway, take that, liberals! “You are just like Bush” bitchslap in 5, 4, 3, 2…

    One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like. Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme. If the Constitution or other laws bar the government action in question, then that’s the end of the inquiry; whether those actions produce good results is really not germane. Thus, those who want to object to the Court’s ruling need to do so on First Amendment grounds. Except to the extent that some constitutional rights give way to so-called “compelling state interests,” that the Court’s decision will produce “bad results” is not really an argument.

    Comment by Brad — 1/25/2010 @ 3:14 pm

  13. I’m still proud of Greenwald’s post, so the lede:

    As one would expect, a substantial number of commenters yesterday disagreed with the Supreme’s Court ruling in the Citizens United case case and with my partial defense of it. I say that’s to be expected because, in our political discourse, it’s virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.). When a court invalidates Law X or Government Action Y on constitutional grounds, it’s always so striking how one’s views about the validity of the court’s ruling track one’s beliefs about the desirability of Law X/Action Y on policy grounds (e.g., “I like Law X and disagree with the Court’s ruling declaring Law X unconstitutional” or “I dislike Law X and agree with the Court’s striking down Law X”).[…] It’s critical always to note that these are two entirely distinct questions: (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional? If you find yourself virtually always providing the same answer to both questions — or, conversely, almost never providing opposite answers — that’s a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution.

    And on the point that Rojas and Thimbles are discussing, whether corporations have first amendment rights or whether spending money on elections qualifies as speech, it’s worth noting that that all nine justices, including the four in dissent, agreed with those two propositions. The question, as Rojas points out, turned on entirely separate propositions. As Justice Kennedy wrote: ” of course speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. No one suggests the contrary.” So, if Thimbles was referring to “radical” as an adjective describing what he said was his principal objection…well, worth noting.

    Comment by Brad — 1/25/2010 @ 4:17 pm

  14. And finally:

    Should it be legal to conduct a warrantless search of Monsanto’s headquarters? Should it be legal for the government to censor the New York Times editorial page? Can the government quarter soldiers in the offices of the CATO institute?

    Or, from Glenn:

    So I’ll ask again — of you and anyone who claims that since corporations are not persons, they have no rights under the Constitution:

    Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want?

    Do they have the right to do that to the offices of labor unions?

    How about your local business on the corner which is incorporated?

    The only thing stopping them from doing this is the Fourth Amendment. If you believe that corporations have no constitutional rights because they’re not persons, what possible objections could you voice if Congress empowered the FBI to do these things?

    Can they seize the property (the buildings and cars and bank accounts) of those entities without due process or just compensation? If you believe that corporations have no Constitutional rights, what possible constitutional objections could you have to such laws and actions?

    Could Congress pass a law tomorrow providing that any corporation – including non-profit advocacy groups — which criticize American wars shall be fined $100,000 for each criticism? What possible constitutional objection could you have to that?

    I heart Glenn Greenwald. But we’re pretty good too.

    Comment by Brad — 1/25/2010 @ 4:27 pm

  15. If Greenwald and I are thinking alike, then we must surely both be wrong.

    Comment by Rojas — 1/25/2010 @ 5:22 pm

  16. Should it be legal to conduct a warrantless search of Monsanto’s headquarters? Should it be legal for the government to censor the New York Times editorial page? Can the government quarter soldiers in the offices of the CATO institute?

    First off, no. It should not be legal to warrantlessly search a corporation’s headquarters but the reasons derive from the beings which comprise the organization, not the organization itself. The corporation is property, not person. The things you list are violations of property and privacy of individuals, not the corporation.

    And I think you should address the framers’ intent of creating armed talking chicken militias before I address the ipso facto absurdum scenarios you postulate.

    The fact of the matter is we should define speech as speech and money as money. Freedom of speech is an essential part, the essence naturally, of political discourse.

    And free speech should not be infringed.
    Money, however, is an essential part of corruption. It’s true that money is a part of politics, but only a fool would suggest that its role in politics can be unregulated.

    Money is not a right that should not be infringed, especially when it can be used to purchase powers on loan to elected officials from the electorate.

    At least when it comes to contributions by individual citizens, there is an argument that can be made for constitutional protection, but the constitutional protections for corporations (and unions) are base on a very weak precedent
    and the corporation does not hold the same citizenship criteria that existing law demands for campaign contributions.
    To me, it’s a radical and bad decision, not because it’s inconvenient, but because it equates thought (speech) with favor (money).
    Gotta run.

    Comment by thimbles — 1/25/2010 @ 10:56 pm

  17. So the only speech that’s protected is that which doesn’t have any money behind it?

    That seems a weird and impossibly impractical stance.

    Comment by Brad — 1/25/2010 @ 11:08 pm

  18. Yes. That doesn’t mean that speech without money is not allowed, just that the money behind speech is limited and regulated and transparent.

    Otherwise speech isn’t free, it costs a lot of money, which gives those with money a huge advantage, as seen already within the wealthy heavy contours of mainstream American politics.

    The cause of free speech is better served by decoupling the the relationship between speech and money rather than reinforcing it.

    Net neutrality furthers free speech in ways unlimited campaign financing can never do, especially when things like net neutrality are threatened by those who provide the campaign financing.

    Is it not time for public processes to be defined on terms other than those defined by private resources?

    I’m tired of reading things like this:
    and waiting for a great depression or a city to drown to redefine the debate years too late.
    Money is not speech. Money is not protected. Money should not dominate the marketplace of ideas.

    The supreme court did not protect free speech in this decision, they made it easier for the wealthy to own it wholesale.

    Comment by thimbles — 1/26/2010 @ 12:32 am

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