Three reasons not to sweat the Citizens United ruling

posted at 3:36 pm on February 3, 2010 by Ed Morrissey

After all, what are corporations? They are legal conglomerations of citizens uniting for specific purposes, and as courts have ruled consistently, constitutional rights don’t disappear just because citizens choose to organize. The multiple ironies of the shrieking hysterics over the Citizens United v FEC starts by having supposed free-speech advocates hyperventilate against a Supreme Court ruling that actually struck down government censorship of free speech.  Reason TV’s Nick Gillespie explains why our Republic is not endangered by the ruling — and where the real danger of corporatism lies:


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We see a corporation as many different things but fundamentally as citizens coming together to express their rights. Property rights, free speech rights, freedom of association rights, et cetera.

SteveMG on February 3, 2010 at 4:59 PM

Right, so aren’t those interests already represented by all individuals who hold an interest in a corporation, for example, shareholders, employees and customers? Why is it then necessary to recognize a free-speech right for the corporations themselves?

Care to list the additional rights they have been granted?

RDuke on February 3, 2010 at 4:31 PM

Yeah, sorry I haven’t been able to clarify further, I was on the phone.

First let’s dispose of this…

So if I get together with a handfull of friends and we pool our money, suddenly we have forfeited our constitutional rights?

MarkTheGreat on February 3, 2010 at 4:52 PM

Absolutely not. You have the exact same constitutional rights after you form a corporation as you had beforehand. Name a right you lose. You can’t. When you join a corporation you still have the same individual right you had beforehand, that is you can still write a book, or give a speech, or stand on a streetcorner and scream that Obama’s a Nazi.

But you also shouldn’t gain extra rights when you incorporate. That is, when you form a corporation. that entity should not have the same constitutional rights you do on top of the ones you already have. That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations. To say otherwise would risk completely destroying the political equilibrium in this country, by giving those who choose to incorporate a much more robust and powerful free speech right than others.

Anyway to the purported constitutional “originalists” here, I’ve yet to hear compelling argument explaining why the Founders intended corporations to be protected by the Bill of Rights.

crr6 on February 3, 2010 at 5:11 PM

There can be no such thing as ‘God-given rights’ to something that is a creation of man.

How about churches?

SteveMG on February 3, 2010 at 5:12 PM

The state forces people to get permission from the state before they can engage in business.

Can this licensing therefore be a valid reason for losing one’s rights?

MarkTheGreat on February 3, 2010 at 5:12 PM

Dark-Star on February 3, 2010 at 5:07 PM

Corporations are authorized and created by the state. It only seems proper that they should get their rights and responsibilities from the state.

So government determines which corporations can speak. Nothing can go wrong there.

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

– Thomas Jefferson

WashJeff on February 3, 2010 at 5:12 PM

Y’know, either one gets this or one doesn’t.

SteveMG on February 3, 2010 at 5:11 PM

I think it has more to do with a refusal to get it based on fear and hatred towards things they don’t control.

MarkTheGreat on February 3, 2010 at 5:13 PM

According to you, the ACLU doesn’t have free speech rights.

MarkTheGreat on February 3, 2010 at 5:05 PM

Great point. The ACLU should not have the rights in a court of law. Only individuals have the right to file suits. And Unions can’t have contract rights. Unions are not named/granted in the Constitution.

barnone on February 3, 2010 at 5:14 PM

Name a right you lose.

crr6 on February 3, 2010 at 5:11 PM

The ability to pool my money with my friends, and use that money to buy air time, ad space, etc.

MarkTheGreat on February 3, 2010 at 5:15 PM

SteveMG on February 3, 2010 at 5:11 PM

You seem to believe corporations are protected under the 1st amendment, yet I’ve seen you argue in another thread against Citizens United on public policy grounds. How can you reconcile the two? If there’s a constitutional right to free speech for corporations, it isn’t subject to the public policy concerns of legislators, justices, or you.

crr6 on February 3, 2010 at 5:15 PM

Do plumbers lose their constitutional rights when they are forced to get a license from the govt before they can engage in business?

MarkTheGreat on February 3, 2010 at 5:10 PM

Do partners in a partnership lose their rights because they are forced to get a license before they can operate?

MarkTheGreat on February 3, 2010 at 5:11 PM

And there we get into the details of it all…and I’m positive I don’t have all the answers.

Look, Mark – shall we just agree to disagree and leave it at that? I can see that nothing I say is going to budge those who agree with corporate personhood; might as well try to convince the Pope that God doesn’t exist, at this rate.

Dark-Star on February 3, 2010 at 5:15 PM

crr6 on February 3, 2010 at 5:11 PM

Absolutely not. You have the exact same constitutional rights after you form a corporation as you had beforehand.

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations.

So what regulations do I have on my speech that are reasonable? Or, does my corporation actual have less freedom than I as an individual?

WashJeff on February 3, 2010 at 5:16 PM

According to you, the ACLU doesn’t have free speech rights.

MarkTheGreat on February 3, 2010 at 5:05 PM

Great point. The ACLU should not have the rights in a court of law. Only individuals have the right to file suits. And Unions can’t have contract rights. Unions are not named/granted in the Constitution.

barnone on February 3, 2010 at 5:14 PM

Agreed on all counts. We’re essentially giving legal powers to ghosts.

Dark-Star on February 3, 2010 at 5:17 PM

Right, so aren’t those interests already represented by all individuals who hold an interest in a corporation, for example, shareholders, employees and customers? Why is it then necessary to recognize a free-speech right for the corporations themselves?

According to you, they don’t have these “extra” rights?

My answer: Because the First Amendment forbids the government from banning this political speech.

Look, as an analogy: just because I have freedom of religion as an individual doesn’t mean the government can ban my religious practice when I exercise it through a church.

We express or practice our rights through many ways, either individually or collectively.

I understand the potential danger in this ruling. Especially on the state and local level where a corporation can essentially buy an election.

But banning this speech is not permitted.

SteveMG on February 3, 2010 at 5:17 PM

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

– Thomas Jefferson

WashJeff on February 3, 2010 at 5:12 PM

Funny, he also said this…

“I hope we shall crush in its birth the aristocracy of our moneyed
corporations, which dare already to challenge our government to a
trial of strength and bid
defiance to the laws of our country.”

crr6 on February 3, 2010 at 5:17 PM

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations.

Well, that’s some progress.

From not having rights to having some rights with reasonable restrictions.

But in order to limit their speech rights, the government must prove a “compelling state interest” to do so.

Very high standard.

SteveMG on February 3, 2010 at 5:19 PM

How about churches?

SteveMG on February 3, 2010 at 5:12 PM

Religion is specifically mentioned as exempt from state control. And although there are a few mega-churches that abuse their nonprofit position, I wouldn’t advocate changing that status. Too few bad apples to think about upsetting the applecart.

Dark-Star on February 3, 2010 at 5:19 PM

Religion is specifically mentioned as exempt from state control.

But not churches. And aren’t churches “ghosts” too? Man-made institutions? “Things”?

If the free speech clause only applies to individuals, doesn’t the freedom of religion clause also apply to just individuals?

After all, a church is, in effect, a religious corporation.

SteveMG on February 3, 2010 at 5:22 PM

“I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
crr6 on February 3, 2010 at 5:17 PM

Corporations in his era were more like to be Government sponsored enterprises. I think there was something called the East India Trading Company that was source of grief for Americans. That corporation was a division of the British government.

Can you think of what corporation Jefferson might have been thinking of when he said this? I would guess it is the East India Trading Company.

WashJeff on February 3, 2010 at 5:23 PM

Religion is specifically mentioned as exempt from state control. And although there are a few mega-churches that abuse their nonprofit position, I wouldn’t advocate changing that status. Too few bad apples to think about upsetting the applecart.

Dark-Star on February 3, 2010 at 5:19 PM

Those that “assemble” in the form of a corporation are also specifically mentioned too!

barnone on February 3, 2010 at 5:23 PM

Religion is specifically mentioned as exempt from state control. And although there are a few mega-churches that abuse their nonprofit position, I wouldn’t advocate changing that status. Too few bad apples to think about upsetting the applecart.

Dark-Star on February 3, 2010 at 5:19 PM

Religion is, churches aren’t.
Speech is, corporations aren’t.

MarkTheGreat on February 3, 2010 at 5:23 PM

So what regulations do I have on my speech that are reasonable? Or, does my corporation actual have less freedom than I as an individual?

WashJeff on February 3, 2010 at 5:16 PM

Well there’s no such thing as an “absolute right”, and even your own right to free speech has been limited by courts (clear and present danger, obscenity).

But in general Congress can’t “regulate” your speech, because it’s protected under the 1st amendment. I think that’s terrific. But I also don’t think corporations should have the same protection. They should be subject to reasonable regulations by our democratically elected representatives, for the reasons stated above. McCain-Feingold was a perfect example of that in action.

crr6 on February 3, 2010 at 5:23 PM

But not churches. And aren’t churches “ghosts” too? Man-made institutions? “Things”?

SteveMG on February 3, 2010 at 5:22 PM

I’ve always understood that churches were the physical buildings in which individuals met.

Dark-Star on February 3, 2010 at 5:24 PM

I’ve always understood that churches were the physical buildings in which individuals met.

Dark-Star on February 3, 2010 at 5:24 PM

A church is the body of believers, the building is just that, a building.

MarkTheGreat on February 3, 2010 at 5:25 PM

They should be subject to reasonable regulations by our democratically elected representatives,

crr6 on February 3, 2010 at 5:23 PM

Translation. Govt should have the power to block people whom I disagree with from having any ability to influence the body politic.

MarkTheGreat on February 3, 2010 at 5:26 PM

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations.

Well, that’s some progress.

From not having rights to having some rights with reasonable restrictions.

But in order to limit their speech rights, the government must prove a “compelling state interest” to do so.

Very high standard.

SteveMG on February 3, 2010 at 5:19 PM

Ugh. No, I wasn’t saying they have “some rights”. What does “some rights” even mean? Either they’re protected by the 1st amendment or they’re not.

I was just pointing out that just because they’re not protected by the 1st amendment, doesn’t mean they’re precluded from “speaking” at all. It just means that their speech isn’t constitutionally protected, and when they do “speak” it may be subject to regulations by Congress, such as McCain Feingold.

crr6 on February 3, 2010 at 5:26 PM

A church is the body of believers, the building is just that, a building.

MarkTheGreat on February 3, 2010 at 5:25 PM

Go figure. I’ve been going over 16 years with the wrong definition.

Dark-Star on February 3, 2010 at 5:27 PM

Last try from me, we’re going in circles:

The government can not just simply seize the property of a corporation because they’d be seizing the property of the individuals who own the corporation.

Similarly, the government cannot ban the speech of a corporation because they’d be banning the speech of the individuals who own the corporation.

SteveMG on February 3, 2010 at 5:27 PM

The Corporations. Man. The Corporations.

phreshone on February 3, 2010 at 5:28 PM

was just pointing out that just because they’re not protected by the 1st amendment, doesn’t mean they’re precluded from “speaking” at all.

Huh?

Not precluded from whom? And how? What’s to prevent the state from saying they have no First Amendment rights?

Again, we’re talking over each other’s heads. You see a corporation as a thing; I see it as a group of citizens assembling to exercise their rights (speech, assembly, property).

We’re going in circles.

End this here for me.

SteveMG on February 3, 2010 at 5:30 PM

The ability to pool my money with my friends, and use that money to buy air time, ad space, etc.

MarkTheGreat on February 3, 2010 at 5:15 PM

You still have that after you incorporate. If you and your friends save up and buy an ad you wouldn’t be precluded from doing so.

Anything else?

crr6 on February 3, 2010 at 5:30 PM

The thing is, were the restrictions of laws like McCain-Feingiold really keeping corporate/union money out of the process, or did it instead encourage less direct donations through front groups, “bundlers,” and the like?

I prefer it be out in the open—remember, the legal ability to give openly to a candidate morphs into the expectation that corporations will give openly to candidates and campaigns, to where the formation of shady front groups to aid a political campaign falls into its rightful place alongside Watergate.

Sekhmet on February 3, 2010 at 5:35 PM

On the issue of churches:

The vast majority of churches are corporations (non-profit ones) and are prohibited from directly or indirectly participating in any political campaign. And that’s either for OR against any candidate for public office. My pastor had to make a point of that in 2008.

Oddly enough, it is the citizenry that makes this whole discussion necessary. If the average person used their noodle, no amount of money would get people to vote contrary to the content of the candidate’s character.

But - we live in an age where people will believe anything they see on TV, hear on the radio or read on the Internet. Either we put some kind of limitations on the process for the purpose of fair elections…or resign ourselves to the fact that the majority of elections will be up for the highest bidder.

Dark-Star on February 3, 2010 at 5:37 PM

We’re going in circles.

SteveMG on February 3, 2010 at 5:30 PM

Yeah, pretty much.

crr6 on February 3, 2010 at 5:39 PM

The ability to pool my money with my friends, and use that money to buy air time, ad space, etc.

MarkTheGreat on February 3, 2010 at 5:15 PM

You still have that after you incorporate. If you and your friends save up and buy an ad you wouldn’t be precluded from doing so.

Anything else?

crr6 on February 3, 2010 at 5:30 PM

But now the group is subject to regulation (if you have your way). So the rules of an individual and a group manifesting itself as a corporation are not the same.

Just in case:

But in general Congress can’t “regulate” your speech, because it’s protected under the 1st amendment. I think that’s terrific. But I also don’t think corporations should have the same protection.

WashJeff on February 3, 2010 at 5:42 PM

But in general Congress can’t “regulate” your speech, because it’s protected under the 1st amendment. I think that’s terrific. But I also don’t think corporations should have the same protection.

WashJeff on February 3, 2010 at 5:42 PM

You aren’t incorporating when you save up money with your friends.

crr6 on February 3, 2010 at 5:45 PM

I was warning people last spring and summer that there was a method to the madness of the White House’s campaigns to tag Rush Limbaugh as the head of the Republican Party, and to tag Fox News as “not a legitimate news organization.” I believe they were planning to have the FEC rule that Rush and Fox News are both corporations (i.e. Rush as the EIB Network) and not qualified for the “news organization” exemption from the restrictions of McCain-Feingold, and that both are engaged in partisan advocacy that is thus illegal. They were going to try to silence both Rush and Fox News before this year’s elections. The SCOTUS ruling just blew this plan out of the water.

rockmom on February 3, 2010 at 4:06 PM

Excellent analysis! The Progressive Dems are always multiple steps ahead in gaming a system. They usually rely on some trick of reframing the argument.

Specter and John Kerry are behind the initiative to limit the First Amendment. Somebody please send these “lawyers,” as well as that idiot President who mischaracterized the ruling in his SOTU speech, back to school to learn about our Constitution and how/why “The Bill of Rights,” spelled out in the first ten amendments, protects us from an abusive government.

onlineanalyst on February 3, 2010 at 5:46 PM

To SteveMG: We may be running in circles, but I’d still like to hear your answer to this post…

You seem to believe corporations are protected under the 1st amendment, yet I’ve seen you argue in another thread against Citizens United on public policy grounds. How can you reconcile the two? If there’s a constitutional right to free speech for corporations, it isn’t subject to the public policy concerns of legislators, justices, or you.

crr6 on February 3, 2010 at 5:15 PM

crr6 on February 3, 2010 at 5:50 PM

You aren’t incorporating when you save up money with your friends.

crr6 on February 3, 2010 at 5:45 PM

I would guess the government forces me to incorporate if my friends and I start buying political ads.

WashJeff on February 3, 2010 at 5:56 PM

I suspect any “corporation” that would by ads, and initiate their free speech rights, to favor a conservative, or republican entity, is in violation. They have no free speech rights.

However, if they support a liberal, progressive, or democrat…they are in full compliance, and simply enacting their first ammendment rights. Just ask George Soros, or the SEIU, or even ACORN….who uses tax payer money to support liberals…when I don’t support them.

capejasmine on February 3, 2010 at 6:13 PM

The vast majority of churches are corporations (non-profit ones) and are prohibited from directly or indirectly participating in any political campaign.

Dark-Star on February 3, 2010 at 5:37 PM

Non-profits are forbidden from engaging in political activity because they are tax exempt. Not because they incorporated.

MarkTheGreat on February 3, 2010 at 6:28 PM

If you believe corporations shouldn’t have a say in the government that represents and regulates them like everyone else does, maybe they shouldn’t have to pay taxes to that government either.

xblade on February 3, 2010 at 7:13 PM

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations. To say otherwise would risk completely destroying the political equilibrium in this country, by giving those who choose to incorporate a much more robust and powerful free speech right than others.

crr6 on February 3, 2010 at 5:11 PM

Ah, now I see where you are coming from. Since unions are able to campaign, but corporations can’t, you would like to freeze the status quo, and maintain a certain advantage enjoyed by one particular political party.

Vashta.Nerada on February 3, 2010 at 7:26 PM

The idea of granting constitutional rights to corporations gives a thing privileges and power that belongs only to a living, breathing person.

Cool. That means corporations are exempt from taxes, because the power to tax is granted by the constitution.

And, since the constitution doesn’t apply to corporations, clearly the freedom of the press as expressed in the first amendment doesn’t apply to corporate press outlets.

xblade on February 3, 2010 at 7:39 PM

Let’s all stop pretending/lying to/mis-characterizing the facts to/deluding ourselves -and in the case of your typical Lib liar, others- that McCain-Feingold was about limiting to ability of corporations to engage in political skullduggery. Witness the unfettered lobbyist access, and admission, to the all administrations since and including the D’ohbama administration today.

McCain-Feingold, with it’s conception 1995, and passage in ’02, was the response of incumbents to the Republican Revolution of ’94. Mostly, it was aimed at the successful tactics of the NRA to respond the to passing of Clinton’s “assault” weapons ban. To claim otherwise is either ignorance or bare-faced lying.

The whole point of McCain Feingold wass incumbency protection; of course the current Democrat majority is desperate to paint the current ruling with their “evil corporations” brush -all while taking that cash.

Don’t think what I’m saying is true?

Name the ad(s) from the “corporations” that provoked McCain-Feingold. Curiously every article, comment and assertion from the Liberal camp is absent these examples.

Doorgunner on February 3, 2010 at 7:40 PM

But you also shouldn’t gain extra rights when you incorporate. That is, when you form a corporation. that entity should not have the same constitutional rights you do on top of the ones you already have.

You have free speech before you become a member of a corporation and you have free speech as part of a corporation. Nothing gained and nothing lost with this ruling.

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations. To say otherwise would risk completely destroying the political equilibrium in this country, by giving those who choose to incorporate a much more robust and powerful free speech right than others.

Corporations weren’t awarded a super duper, extra special version of free speech. Free speech is free speech, and there is no platinum level. If free speech is the same whether in a corporation or individual and you support individual free speech then what are you really opposing? The difference between individual and corporate is the group, and it’s access to money.

You’re opposing an entity with a lot of cash having the ability to buy airtime. I’m guessing that the boogey man under your bed is the irrational fear that a GE is going to purchase massive amounts of airtime to spout their conservative values. It’s not a valid concern. GE purchased a megaphone before this law was struck down by purchasing NBC and it’s affiliates. What would have stopped any of those evil corps from just purchasing one of the many failing news papers, and bypassing the law?

Anyway to the purported constitutional “originalists” here, I’ve yet to hear compelling argument explaining why the Founders intended corporations to be protected by the Bill of Rights.crr6 on February 3, 2010 at 5:11 PM

Lucky for us you aren’t on the SCOTUS, and your legal opinion isn’t important.

DFCtomm on February 3, 2010 at 8:59 PM

That’s not to say of course that corporations shouldn’t be able to “speak” at all, but just that that speech should be subject to reasonable regulations. To say otherwise would risk completely destroying the political equilibrium in this country, by giving those who choose to incorporate a much more robust and powerful free speech right than others.

crr6 on February 3, 2010 at 5:11 PM

There is no such thing as reasonable regulations on political speech. That is an oxymoronic concept. Talk about the fox watching the hen house.

Saltysam on February 3, 2010 at 9:45 PM

But – we live in an age where people will believe anything they see on TV, hear on the radio or read on the Internet. Either we put some kind of limitations on the process for the purpose of fair elections…or resign ourselves to the fact that the majority of elections will be up for the highest bidder.

Dark-Star on February 3, 2010 at 5:37 PM

I read on the internet that, either we put some kind of limitations on the process for the purpose of fair elections…or resign ourselves to the fact that the majority of elections will be up for the highest bidder. So, it must be true.

Okay let’s kill free speech. NOT!

The only, and I mean the only, solution to the problem of free speech, is free speech.


We can easily forgive a child who is afraid of the dark. The real tragedy in life is when men are afraid of the light.

Plato

Saltysam on February 3, 2010 at 10:03 PM

I’m amazed at some of the comments I’ve seen on this post.

That people can look at themselves in the mirror and be satisfied with the idea of using the Iron Fist to place limitations on political speech is absolutely appalling to me.

Saltysam on February 3, 2010 at 10:13 PM

I have yet to see a coherent argument against this ruling and I have searched long and hard.

scotash on February 3, 2010 at 11:00 PM

I still don’t get why the Lefties are so upset by this. Many of these big corporations and assorted billionaires poured lots of money into the Obama campaign as well as those of other Dems.

Not sure why they would do that, but I guess they figure the Dems are always good for a handout, while the Republicans (the real ones anyway) are of the belief that one sinks or swims in a capitalist economy?

Dr. ZhivBlago on February 4, 2010 at 4:17 AM

Either we put some kind of limitations on the process for the purpose of fair elections…or resign ourselves to the fact that the majority of elections will be up for the highest bidder.

Dark-Star on February 3, 2010 at 5:37 PM

Haven’t really been paying much attention, have ya?

runawayyyy on February 4, 2010 at 12:31 PM

Haven’t really been paying much attention, have ya?

runawayyyy on February 4, 2010 at 12:31 PM

Just to the people who seem to jump at the opportunity to be intellectual human shields to the very organizations that are trying to buy their government out from under them.

Dark-Star on February 8, 2010 at 2:36 PM

Saltysam on February 3, 2010 at 10:03 PM

Our winner-take-all system encourages two things: telling people want they want to hear, and being the loudest ‘voice’ in an election.

The former gave us Obama, whose only qualification was promising the right things to enough gullible voters.

The latter encourages a stagnation of candidates to those who have the most money, whoever that may be.

Dark-Star on February 8, 2010 at 2:44 PM

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