THE BEST FREE SPEECH MONEY CAN BUY
Jan. 25th, 2010 12:44 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
defrogSo as you may have heard, Keith Olbermann is a little upset about last week’s Supreme Court ruling that struck down campaign finance regulations restricting the ability of corporations and unions to use funds from their general treasury for "electioneering" purposes.
Given that the plaintiffs in the case were the same people who brought you Hillary: The Queen Of Black Fucking Evil, the reaction has been pretty predictable. Conservatives are happy, liberals are angry. And KO is the angriest of the bunch, decrying it as the ultimate sellout of democracy, giving corporations unlimited power to buy every election from here on out and screw the average voter while they’re at it.
Okay. That’s obviously not good. On the other hand, you’ve got Greg Palast talking about how the decision will enable foreign companies to secretly buy elections – even though, according to the NYT, the Supremes voted 8-1 to keep a provision of the law that requires corporations and unions to identify where their PAC money comes from. It also leaves in place the ban on direct contributions to candidates and unlimited donations to political parties.
Which got me to wondering, just what exactly was this case about, and how bad really is the ruling?
I’m not a lawyer or a judge. But I do have an Internet account. So I looked around a little and it turns out the importance of the ruling depends in part on which you think is more important – the role of corporations in campaign financing, or freedom of speech for everyone. And the majority decision seems more concerned about the latter.
Glenn Greenwald (a Constitutional lawyer and a liberal, besides) makes some points worth considering about the free-speech angle of this case:
So in terms of the 1A, an argument could be made that the Supremes did the right thing. And as a self-confessed 1A junkie, I think it’s a valid point.
That doesn’t mean that corporate influence over politics is not a problem. It’s a major problem, and Greenwald says so. But it was a problem even with the struck-down regulations in place, and corporations found ways around them anyway. The corporate lobby machine bought out Congress and the White House at least a hundred years ago, and Corporate Influence and Big Money are so institutionalized that the campaign finance laws in question were the equivalent of putting Bactine on a gunshot wound.
If you want to argue that the real issues are that corporations shouldn’t be counted as persons (even though that’s been true in the US since 1886) and that money is not speech, you can. But none of the dissenting judges would agree with you on the first point. Even in their dissenting opinions, they affirmed the right of corporations to have 1A protections and rights – they merely argued that the state had a compelling interest in restricting that speech. The majority didn’t agree.
The problem with the “money is not speech” argument is that, by that logic, you could pass laws making it illegal for anyone to spend money to criticize laws enacted by the Congress. That doesn’t mean you can’t criticize it – it just means you can’t buy an ad or use any media at all to express yr view unless you can somehow do it without spending a dime. Which reminds me of the time a convenience store clerk who objected to my “Censorship Is UnAmerican” t-shirt tried to argue with me that just because Ice-T had a 1A right to record “Cop Killer”, he didn’t have the right to let other people listen to it.
Anyway, I’d recommend reading Greenwald’s take on this here and here, if only to get behind the rhetoric and see why there’s more to this than Halliburton buying elections (remembering that corporations donate to Demos too).
I’m not saying people shouldn’t be concerned or upset about the ruling – but it pays to be concerned and upset for the right reasons, and to understand the potential consequences had the ruling gone the other way.
Court is adjourned,
This is dF
Given that the plaintiffs in the case were the same people who brought you Hillary: The Queen Of Black Fucking Evil, the reaction has been pretty predictable. Conservatives are happy, liberals are angry. And KO is the angriest of the bunch, decrying it as the ultimate sellout of democracy, giving corporations unlimited power to buy every election from here on out and screw the average voter while they’re at it.
Okay. That’s obviously not good. On the other hand, you’ve got Greg Palast talking about how the decision will enable foreign companies to secretly buy elections – even though, according to the NYT, the Supremes voted 8-1 to keep a provision of the law that requires corporations and unions to identify where their PAC money comes from. It also leaves in place the ban on direct contributions to candidates and unlimited donations to political parties.
Which got me to wondering, just what exactly was this case about, and how bad really is the ruling?
I’m not a lawyer or a judge. But I do have an Internet account. So I looked around a little and it turns out the importance of the ruling depends in part on which you think is more important – the role of corporations in campaign financing, or freedom of speech for everyone. And the majority decision seems more concerned about the latter.
Glenn Greenwald (a Constitutional lawyer and a liberal, besides) makes some points worth considering about the free-speech angle of this case:
Ultimately, I think the free speech rights burdened by campaign finance laws are often significantly under-stated. I understand and sympathize with the argument that corporations are creatures of the state and should not enjoy the same rights as individuals. And one can't help but note the vile irony that Muslim "War on Terror" detainees have been essentially declared by some courts not to be "persons" under the Constitution, whereas corporations are.
But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.
But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.
So in terms of the 1A, an argument could be made that the Supremes did the right thing. And as a self-confessed 1A junkie, I think it’s a valid point.
That doesn’t mean that corporate influence over politics is not a problem. It’s a major problem, and Greenwald says so. But it was a problem even with the struck-down regulations in place, and corporations found ways around them anyway. The corporate lobby machine bought out Congress and the White House at least a hundred years ago, and Corporate Influence and Big Money are so institutionalized that the campaign finance laws in question were the equivalent of putting Bactine on a gunshot wound.
If you want to argue that the real issues are that corporations shouldn’t be counted as persons (even though that’s been true in the US since 1886) and that money is not speech, you can. But none of the dissenting judges would agree with you on the first point. Even in their dissenting opinions, they affirmed the right of corporations to have 1A protections and rights – they merely argued that the state had a compelling interest in restricting that speech. The majority didn’t agree.
The problem with the “money is not speech” argument is that, by that logic, you could pass laws making it illegal for anyone to spend money to criticize laws enacted by the Congress. That doesn’t mean you can’t criticize it – it just means you can’t buy an ad or use any media at all to express yr view unless you can somehow do it without spending a dime. Which reminds me of the time a convenience store clerk who objected to my “Censorship Is UnAmerican” t-shirt tried to argue with me that just because Ice-T had a 1A right to record “Cop Killer”, he didn’t have the right to let other people listen to it.
Anyway, I’d recommend reading Greenwald’s take on this here and here, if only to get behind the rhetoric and see why there’s more to this than Halliburton buying elections (remembering that corporations donate to Demos too).
I’m not saying people shouldn’t be concerned or upset about the ruling – but it pays to be concerned and upset for the right reasons, and to understand the potential consequences had the ruling gone the other way.
Court is adjourned,
This is dF
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no subject
on 2010-01-24 05:43 pm (UTC)~M~
no subject
on 2010-01-25 04:23 pm (UTC)