27
Jan
10

A Citizens United reprise

Because once I start blathering on about something, I just can’t seem to stop.

——

Glenn Greenwald won’t stop, either; this is likely due to the apparent circumstance that his commenters won’t (a) read what he wrote or (b) stop bothering him with their reactions to what they think he wrote.  We have the following:

Greenwald begins with delightful asperity:

I say [that disagreement with this post is] 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”).

This is what comes of focusing on outcomes rather than processes.  Objective constraints like the Constitutionality of a law become mere reflections of one’s own opinion, at least to oneself.  (The less depressing thing about the Constitution is that it obstructs some good from being done; the more depressing thing about the Constitution is that we fixate upon that good while ignoring the overwhelming evil that it also obstructs.  If only we didn’t have that damn rag from 1787, we could make the trains run on time!)

Greenwald goes on to note that, while many of the internet’s objections to Citizens United stem from the idea that “money isn’t speech” (upon which more anon) and/or that corporations are specially exempted from the First Amendment, none of the Supreme Court justices entertained either position.  I’ll use his words to segue:

The fact that all nine Justices reject a certain proposition does not, of course, prove that it’s wrong.  But those who argue that (1) corporations have no First Amendment rights and/or (2) restrictions on money cannot violate the free speech clause should stop pretending that the 4 dissenting Justices agreed with you.  They didn’t.  None of the 9 Justices made those arguments.

To the contrary, the entire dissent — while arguing that corporations have fewer First Amendment protections than individuals — is grounded in the premise that corporations do have First Amendment free speech rights and that restrictions on the expenditure of money do burden those rights, but those free speech rights can be restricted when there’s a “compelling state interest.”

(Emphasis in the original.)

“Compelling state interest” is the sort of phrase that makes my eyes bleed.  It’s a direct, powerful, and frightening phrase: it emphasizes the fact that the state has interests which are utterly inimical — and often specifically harmful — to the people over whom that state purports to rule.  It reminds me of the gallows wisdom that, by definition, most participants in a gang rape enjoyed it and would do it again.  But let’s continue before I write something that’ll get me arrested in this land of Human Rights Commissions:

Those who want to restrict free speech always argue that there’s a compelling reason to do so (“we must ban the Communist Party because they pose a danger to the country”; “we must ban hate speech because it sparks violence and causes a climate of intimidation”; “we must ban radical Muslim websites because they provoke Terrorism”).  One can have reasonable debates over the “compelling interest” question as a constitutional matter — and, as I said yesterday, I’m deeply ambivalent about the Citizens United case because that’s a hard question and I do think corporate influence is one of the greatest threats we face — but, ultimately, it’s because I don’t believe that restrictions on political speech and opinions (as opposed to other kinds of statements) can ever be justified that I agree with the majority’s ruling.

Don’t make me quote Heinlein at you, Greenwald commenters.  Okay, you asked for it:

“When any government, or any church for that matter, undertakes to say to its subjects, ‘This you may not read, this you must not see, this you are forbidden to know,’ the end result is tyranny and oppression, no matter how holy the motives. Mighty little force is needed to control a man whose mind has been hoodwinked; contrariwise, no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything—you can’t conquer a free man; the most you can do is kill him.”

—Robert A. Heinlein, If This Goes On, 1940

But beyond this notion of “special” rights and “compelling” State interests is the disgusting insinuation that the Supreme Court is mostly concerned with ridiculous technicalities, persisting in narrow and literal-minded interpretations of the Constitution with no concern for the real problems facing our country — problems which must be dealt with expediently and forcefully.

Wait, are we talking about terr’ists or corpuh-ayshuns?

One of the principal accusations made over the last eight years from Bush followers — directed at those like Turley and the ACLU who objected to Bush terrorism policies on legal and Constitutional grounds — is that they were caught up in “legalisms,” absolutism and dogmatic purity at the expense of addressing a “real-world” crisis:  the threat of Terrorism.  “People are trying to KILL US and you’re worried about due process.”  Those same name-calling accusations were made frequently by commenters last night about those who think the First Amendment actually means what it says and can’t be violated in the name of good results (“your absolutism and legalistic purity ignores the real-world problem of corporate influence”).

And y’know what?  It’s still a bogus argument, fuckers, whether you do it or the Bushies do it. Listen up, you primitive screwheads: the primary threat faced by any people is not teh ebil terr’ists, nor is it teh ebil corpuh-ayshuns: it is, as the Founding Fathers discovered back around that apparently-forgotten war near the end of the Eighteenth Century, their own government. The Constitution does not exist to keep us safe from each other.  The Constitution does not exist to keep us safe from other nations.  The Constitution does not exist to tell us how to pee.  The Constitution exists to protect us from our own government, because our own government is the force with the most guns brought to bear upon us.

Nineteenth-century slaveholders were terrified of an armed uprising from their unjustly-indentured servants, and with good reason.  So too should our governments be terrified of us.

I get a bit vicious when I’m angry.

——

Glenn Greenwald gets quite vicious when he’s angry.  Not wrong, but vicious; and Barry Goldwater (and your humble blogger) would remind you that extremism in the defence of liberty is no vice:

Anyone who believes that [“money isn’t speech, it’s property”] would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as:”It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;” or

“It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent”; or

“It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.”

Anyone who actually believes that “money is not speech” would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).

Do you actually believe that? I don’t even find that argument sufficiently coherent to warrant much discussion.

It would be like saying: “No person shall be permitted to use a megaphone or television outlet to advocate liberal views — there’s no First Amendment problem: megaphones and television outlets are just ‘property, not speech’.”

(Emphasis added.)

These examples are almost absurdly germane to Ilya Somin’s post on corporate and property rights, which ameliorates my understanding of corporate rights in general: it now seems to me that “the rights of corporations”, far from being “new, excessive” rights, are simply more specific codifications of the rights of individuals (who, through free association, compose a corporation).  You know, the way gay marriage rights are simply new codifications of existing individual rights rather than “new, special” rights.  I’m willing to be persuaded otherwise, since I’m embarrassingly ignorant in the field of corporate law and judicial precedents for the rights of corporations; but corporate law as short-hand for the rights of individuals in aggregate fills in a lot of gaps for me, and I’m at least clever enough to apply Ockham’s Razor to the matter.

——

Let’s now take a moment to examine Kevin Drum’s response to Glenn Greenwald’s first post:

Mr. Drum begins with a tedious error:

But there’s a difference here: in the case of, say, Brown vs. Board of Education, the pernicious effects of Plessy over the previous half century were plain. In Citizens United, we had an equally plain view of the effects of previous restrictions on corporate campaign funding, and those effects were… negligible.

The frustration… it burns….

Citizens United v. Federal Elections Commission is not about the fucking corporations!

Frankie fuck a fencepost; we’ve already established that corporations can spend as much goddamned money as they want to influence local, state, or national politics by way of existing means such as lobbying the thrice-damned pols directly.  Dropping money on the campaign of someone who might get elected has got to be seen as a riskier venture, to be undertaken only as a last resort — and it’ s not as though they can’t buy the opinion of a New York Times editorial staffer.  Fuck me sideways: Bush 43 bought the whole Iraq War for the mere promise of “access”; don’t tell me that someone with real money to offer a dying legacy-media franchise couldn’t have their way with the Grey Lady in any convenient back-seat or dark corner.

Okay, let’s get back to the part where Mr. Drum has a point:

Modern corporations are far more than [organized groups of people], and long precedent recognizes this by allowing them fewer speech rights than individuals. Fairly broad restrictions on advertising, for example, are both constitutional and widely accepted. Ditto for laws that prohibit corporate officers from discussing earnings forecasts during “quiet periods.” So it’s perfectly defensible to suggest that corporations might also have more restricted rights when it comes to campaign speech.

I’m going to provisionally disagree with the notion that corporations are somehow “special” relative to other groups of people organized to a common purpose, but the judicial-precedent point appears to stand just fine on its own.  Corporations are permitted fewer rights than individuals.  (Whether this is a good thing is perhaps the topic for another post.)  So it’s entirely reasonable, following Mr. Drum’s reasoning, to assert that corporate rights are special… in the context of a First Amendment that deals with the rights of individuals.  Why don’t we have a look at the First Amendment, anyway?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of speech and freedom of the press would appear to be of a kind.  No mention is made of individuals (as members of “the people” who might peaceably assemble and petition the &c.) until the clause after “freedom of speech”.  If freedom of speech and freedom of the press are indistinguishable in the First Amendment, I don’t see how they’d be distinguishable in terms of corporate rights: following Mr. Drum’s argument, we might allow a New York Times editorialist publicly to endorse a candidate through s/h/its newspaper column, but forbid the Grey Lady herself from expressing an opinion.  After all, corporations can’t be trusted.

Smile, it gets worse.  Right at the end we encounter this peculiar dictum:

Exxon is not the Audubon Society and Google is not the NRA. There’s no reason we have to pretend otherwise.

Far be it for me to cast aspersion upon any of the players involved, but que hablo what the fucking fuck? It is not only invidious but utterly counterproductively reactionary to deride any group simply because they seek to profit for themselves.  Coyote Blog does this one better than I:

When you say “Exxon is not the Audubon society,” I am not sure how? I am a stockholder of the first and a member of and contributor to the second. I have bought products from both. I have written both (well, actually I wrote Mobil once but it is the same now as Exxon) about their issue advocacy, each time with equally small effect. It is as difficult as a stockholder of Exxon to even get a disclosure of their issue advocacy and lobbying efforts as it is for Audubon (though I am smart enough to take a pretty good guess at both). Neither allows me, as a shareholder/member/contributor to vote on their advocacy/lobbying, either in terms of amount spent or direction. Each carry substantial influence in particular government realms.

But that’s not the line about which I intend to bitch most.  That dubious honour falls to this throwaway:

I’m just enough of a First Amendment fundamentalist to believe that there are plausible arguments for allowing corporations to make political contributions; […]

(Emphasis added.)

“First Amendment fundamentalist” is a particularly ugly turn of phrase.  I might quote the rest of that Barry Goldwater bit: “Let me remind you also that moderation in the pursuit of justice is no virtue!”  Particularly in a realm where everyone concerned has admitted that shit-tons of money buys one (to a greater or lesser degree; we’ve established that government is a whore, we’re just haggling about its price) a great deal of influence over policy, couching one’s support for the First Amendment in the same sort of language with which one refers to those who seriously debate each other over locking their wives in the woodshed during menstruation catches me somewhat aslant.

The First Amendment has no “yeah, but” to it.  It means precisely what it says, and this particular kerfuffle over moneyed influence over government serves merely to underscore its importance: that free speech must not be restricted, no matter who’s already bought influence and wants to protect it.

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2 Responses to “A Citizens United reprise”


  1. January 29, 2010 at 16:34

    The Constitution does not exist to keep us safe from other nations.

    Actually, it does. This is one of the specific duties of government. Granted, the bill of rights consists largely of limits on what government may do, (although by placing limits on powers with “due process” requirements, it implicitly grants those powers to government, see more further down) but the Constitution more generally is merely the definition of our government. It spells out what constitutes government, in our United States. Therefore the constitution is synonymous with the government, and when people lose track of that, we get to the mess we have now. The Constitution is the ideal, the execution of which is sadly lacking and fading further every day.

    As for the bill of rights being limits government power/delegated authority, there’s nowhere in the Cosntitution outside the Bill of Rights that allows the Feds to search your person and property. But the bill of rights puts limits on it, which means there is such a power assumed to exist.The 5th amendment guarantees the right not incriminate oneself, and thereby implicitly acknowledges the giovernment has the authority to judge you. You can’t put a limit on something that doesn’t exist, so logically limiting something also allows it in some cases and circumscribed conditions.

    Anyway, the Constitution specifically deals with national defense, one of the few things in the current budget which is supposed to be there, and a small percentage of total spending.


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