Here from Maya Sen are speech balloons illustrating the importance of various words from the majority and then dissenting/concurring opinions in Citizens United v. FEC (more frequently used words are larger). It's interesting to me that just looking at the balloons I can tell which side was more concerned with the Constitution and which side was more concerned with a particular view of the ideal polity.
See Bainbridge for a much more complete roundup of the issues.
The balloons reflect the fundamentally different view of the Constitution that is evident in the opinions.
And that the minority believes it is OK to ignore the action (speech and association) and regulate speech and associations based on the type of person you are.
Bainbridge is well worth reading, even if you don’t agree with him. And this point is a good summary:
In contrast, the logic of Stevens’ view would allow the state to hijack the corporation whenever it feels like it.
Not that “the state” would ever do that. No, that would be too much like corporatism, or fascism, or …?
“It’s interesting to me that just looking at the balloons I can tell which side was more concerned with the Constitution and which side was more concerned with a particular view of the ideal polity.”
Without looking at the balloons, I could tell that you would be able to do this, i.e. your statement says more about you than it does about the opinions.
Isn’t concern with the Constitution motivated by concern with a particular view of the ideal polity?
I think it is interesting that some argue that a corporation is simply an aggregation of the views of US citizens.
That is a very US centric view. Many multinational corporations are owned by foreign citizens, and foreign citizens directly own US corporations.
Nor do I think one can now ban a foreign corporate subsidiary from contributing to US elections. They are persons organized under the laws of a state of the United States and are persons, and thus entitled to free speach.
Second, since corporations can now go directly to the voters and support a candidate, indirect contributions may drop off. So, all those corporate sponsored think tanks and entreprenuership centers that pump out stuff for the media to pick up might be looking for additional sources of funding as the corporations, with fixed budgets, decide to go direct.
Isn’t disintermediation wonderful.
Haven’t read the opinion, but I’m surprised more people don’t have as a starting point the difficulty under the First Amendment of regulating political speech, a fundamental right. How the hell do you balance “Congress shall make no law …. abridging the freedom of speech…”?
Posts like this are reason #4349 why Alex is known as “that other guy who blogs on Marginal Revolution.”
If you don’t agree with the Constitution, argue for changing it. You cannot support the First Amendment AND support restricting political speech. Period.
How does speech==money? Regardless of how ridiculous this is prima facie (which is a strict constructionist standard), does that mean that poorer people have a smaller voice, de jure, in the US?
MostlyAPragmatist said Without looking at the balloons, I could tell that you would be able to do this, i.e. your statement says more about you than it does about the opinions.
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Very true…I am afraid Tyler and Alex are becoming more of TeaBaggers with no thinking as opposed to gaining improved economic and blogging insight.
Bill,
Congress had already done that for media corporations by giving them a very special exemption. The court simply applied that standard to all rather than allowing Congress to pick and choose amongst favorites. Given that the First Amendment is rather explicit in its language about what Congress can acutally do to restrict speech and people’s right to assembly, your argument really is with the Constitution, and not the court.
Again, I ask you, since you dodged my question- can you justify Congress’ exemption to media corporations? If not, then the law had to either be struck down, or the court has to order the FEC to apply to all corporate media editorials. There wasn’t a middle ground.
@Yancy, Yes I can justify the exemption for media corporations, ie, the press, being able to communicate to its readers; that’s easy. I read the constitution.
Now, where did you say that the corporation is entitled to unregulated free speech? We regulate corporate speech all the time.
Wrong. It is not corporate speech that is regulated “all the time”, it is commercial speech.
Court is saying you can’t regulate political speech. Seems pretty basic.
Since a corporation is legally a person, why don’t we just cut out the middleman and elect corporations as our representatives? I live in North Carolina, so perhaps Bank of America and Duke Energy could be our Senators.
To say that either company could not run for office is a violation of his(her?) rights. Right?
The real question, for all you constitutional afficianados, is whether the court could have addressed the specific issue in the case without reaching the constitutional issue of whether a corporation is entitled to the same free speech rights as an individual citizen.
There were many avenues of reaching a narrow decision without going this way.
The problem is that when you push things into a constitutional category, as the majority did, it makes it difficult for the citizens to address problems through the legislative process.
For those who like the decision because they think their candidates will get more moolah, think twice. Outcome based decision making can come back to bite you, if not now, then later, and your views may change. But, once it is a constitional category as the court did in overruling 63 years of case law and its own precedent, everyone has a more difficult time in addressing real problems, which, if they are truthful to themselves, they know exist.
So, the words the two sides use are transparent reflections of their real “concerns”?
@blades: Responding to your comment: ‘An individual can spend his or her dollars on an independent campaign favoring or disfavoring a candidate. That’s free speech. What’s the difference if a labor union, corporation, partnership or association does the same thing?’
That’s the aggregation fallacy.
Corporations are not aggregations of citizens. In fact, corporations are entities chartered by the state (by the way, those charters can be amended by the state to limit the scope of the entities activities), they are not aggregations of individuals. Their shareholders do not even have to be US citizens; you can now have foreign citizens, through their ownership of US corporations, multinationals, or US corporate subsidiaries companies, picking candidates through their contributions.
The supreme court overruled precedent on this, and could have resolved this particular case without making the ruling they did.
Just remember: a corporation is not a natural person; if you prick it, it does not bleed, and its charter is granted by the state, the scope of its activities can be regulated by the state. If the scope can be regulated in its charter, so can what it does. This is not free speech. It is just an overly broad decision overruling prior supreme court precedent. Too bad for all of us, because issues such as this are probably best legislated rather than being put into a constitutional category. If you do not believe this is corrupting to our process, please say so proudly.
When a corporation speaks it is commercial; what else is a corporation than a commercial enterprise.
Well, the ACLU, for one of many thousands of examples, is a corporation. How are they a commercial enterprise? Now your problem isn’t just with the Constitution, it’s with the English language.
Very true…I am afraid Tyler and Alex are becoming more of TeaBaggers with no thinking as opposed to gaining improved economic and blogging insight.
Boo hoo! You bad teabaggers! You bad bloggers! You non-thinkers! No insight at all!
Wow, you convinced me. And it didn’t cost you anything!
The point of this decision and its nature as precedent is being completely ignored. Prior to the decision a corporation was treated as a “person” as a matter of legal, but economically convenient, fiction. Now the fiction has been officially erased as such and instead elevated to highest constitutional principle. Will the second amendment now apply to corporations without limitation? Will the fifth, so that no employee of a corporation can be legally compelled to testify about actions. Etc. The Court has embarked upon a very slippery slope.
d4winds
You seem to be engaging in hand-waving. What has been elevated to highest constitutional principle is political speech. Not the personhood of a corporation.
How could a corporation bear arms anyway? And I don’t think a corpration could be waterboarded, so Fifth Amendment looks OK, d4, buddy.
This is not economics. Economics is hard. This is the meaning of words. This is simple.
“Congress shall make no law …. abridging the freedom of speech…”
Robert,
In other words, what you are asking is why is Congress is busy abridging free speech when the 1st Amendment explicitly denies it this power? And why some people want to find arguments so that they can support Congress’ work to do so?
It is probably more likely that someone like China will fund a large number U.S. based companies explicitly for the ability to influence government policy.
This ruling has opened the door to massive inflows of foreign money into the U.S. political process. All someone needs to do is incorporate and run the donations through a corporation now. We are likely to see corporations formed for the sole purpose of funding political candidates.
Additionally, the largest corporations are simply much more wealthy than the wealthiest individuals. I expect that there will be much more money in politics – and many more “payoff” style political “donations”.
The decision is not about donations. It’s about speech. Or go ahead, just make stuff up.
For whatever it is worth, the concept of corporations as juridical persons is not
directly addressed at all in the Constitution specifically. It is a concept that
has developed in the US over time as a result of a series of court rulings followed
by legislation at various levels of government. Many see the original key court
ruling as Dartmouth v. Woodward in 1819.
BTW, the idea had been around previously in a limited form, certainly in English
common law, with many legal scholars tracing it to ideas from medieval Roman Catholic
Church law. However, it only became fully developed in the US following the 1819
Supreme Court ruling, with some arguing it was not fully there until the 1880s.
It’s not a question of who has a right to free speech. The constitution does not confer on anyone a right to free speech. The constitution simply prohibits congress from stopping any free speech or printing. Prof. Rosser, “the press” in the first amendment does not refer to newspaper publishers, it refers to the physical printing press. Freedom of the press is just the right to use the press to print with. Back then, all kinds of people would print handbills, broadsides, pamphlets, etc.
Congress can’t make any laws infringing freedom of speech or of the press. You can’t really deny that laws stopping corporations from publishing political advocacy are infringing freedom of the press. End of story.
Alex wrote: >>It’s interesting to me that just looking at the balloons I can tell which side was more concerned with the Constitution and which side was more concerned with a particular view of the ideal polity.>>
Alex, I have waded through 50 comments in the vain hope of finding at least one that addressed the above statement. Instead, I found fifty comments arguing legal issues (with very little skill at that type of argument), and NONE of them addressing the idea you wrote–i.e., that this method of word analysis is revealing about the writers of the words. So please let me be the first respondent to address that directly…
Consider the following hypothetical:
Suppose a majority opinion, eloquently written and at great length, recounting the history of “first amendment constitutional” issues, emphasizing especially “free speech.” In this hypothetical opinion, those key phrases appear over and over again. Any word-count model will show a picture highlighting those words, “proving” that the majority was interested in the constitution, the first amendment, and freedom of speech.
In my hypothetical opinions, of course, the four dissenting justices would have an opening sentence stating that the real issue of the case is the standing of corporations to be entitled, or not, to protections under the first amendment, or in fact under any clause of the constitution. The many pages of text would then be devoted to citing precedents, arguments, and issues focusing on the critical questions regarding corporations. Are they protected? Are they entitled to rights granted in the bill of rights? A word-count model would show a HUGE emphasis on “corporations,” and a microscopically small mention of “free speech.”
And from this, you would surmise one side was about the constitution, and not the other?
Don’t worry Bill. My candidates won’t get a windfall for darn sure.
Prof. Rosser – as Mr. Ward points out, you did indeed make the comment I demolished. You’ve obviously had tenure too long – your students must love your groundless insults. You think that the constitution protects businesses that print. It doesn’t. It protects anyone’s freedom to print.
Mr Ward – actually, I don’t think we get to let Prof. Rosser off the hook even if he agreed that non-media corporations could buy time from media corporations. His reading of the constitution is untenable. “Freedom of the press” doesn’t have any meaning at all, really, if it means “freedom of media organizations.” Freedom to do what? Freedom in the sense of not being enslaved? Freedom from taxes?
The only reading of that phrase that does make sense is in parallel with “freedom of speech.” That is, freedom to utilize a particular method of expression. As I pointed out in a comment that Prof. Rosser referred to as “incoherent rubbish,” printing in the constitutional era was generally engaged in by political actors, in the form of pamphlets, handbills, etc., and of course books, and was certainly not limited to newspapers or other businesses that made a living out of selling publications. The constitutional phrase means that, just as congress was not allowed to abridge anyone’s freedom to speak, so it was also not allowed to abridge anyone’s freedom to print.
Mike,
I retract “incoherent.” I do not retract “rubbish.” The most recent Court ruling is controversial precisely because it is overturning about a century of law in place and appears to be ignoring established precedent. So, using it to establish the history of a doctrine is rubbish, if not entirely incoherent.
Sorry, ad Mike, you are not off the hook. I just did a major google search on the matter, and what I thought is what is correct. There is nobody out there (and I had never heard of anyone) who argues (or argued) that “freedom of the press” refers specifically to the physical printing press.
Actually, there are such people.
http://volokh.com/2010/01/21/lessened-corporate-first-amendment-rights-and-media-corporations/
Nice post. My friend John told me about this blog some weeks ago but this is the first time I’m visting. I’ll undoubtedly be back.
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