My first question relates to corporate free speech. Who gets to control what the corporation says? Is this managers, the directors, or the shareholders? After Citizens United, the corporation has the same free speech rights as an individual, but under SEC rules, shareholders are limited in the kinds of issues they may bring to a proxy fight, and most shareholder votes are non-binding. I would think that with the rights conferred by Citizens United would come new opportunities for responsibility. Both state corporation laws and SEC proxy rules could change the game by allowing binding shareholder votes. This isn’t a question of regulating speech, but a question of changing the internal structure of corporations, both public and private.
Second, if corporations are to be treated as individuals for legal purposes, states and the federal government need to find equivalent and appropriate penalties for criminal law violations. It’s clear that fines are insufficient. My take is that the corporate equivalent of imprisonment comes in two places: (1) debarment of management and directors, and (2) receivership. It seems to me that state and federal criminal law could make use of these penalties to enhance the responsibilities of corporate personhood. I would also favor imposing a corporate “death penalty” as required, with the possibility of recievership and liquidation for egregious corporate criminal behavior.
My overall point is this: with new rights come new responsiblities. Corporations should be careful what they wish for, as there are some alternatives short of constitutional amendments that could begin to make them behave as citizens, not just persons.
I honestly do not know how to answer most of those and I’m not sure many others do either. SCOTUS will probably spend the greater part of the next decade (or longer!) interpreting the fallout from this decision. As the make-up of the court will most likely not be changing ideologically during that time, I would expect the decisions of the court to further expand the definition of corporation as person.
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p>SCOTUS Blog did a nice wrap up (asking a lot of the same questions). One point in particular spelled out the danger of this ruling.
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p>On another note, I actually worry the court my become more conservative in the coming years, even if Obama wins reelection. The fallout from Sotomayor is probably going to push the President towards a more moderate choice if another justice were to retire. Looking at who that could be, signs point to JP Stevens (at 89) or Ginsberg (at 75-whose health has been of question). Replacing a liberal member of the court with a moderate one would further tip the balance of power. My money is on Merrick Garland, but that’s a topic for another time.
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p>I’ve been looking up a group called Free Speech for People. They’re looking at different types of legislation to work around the ruling.
I do think the “fallout” from from the Sotomayor appointment was a net positive for Obama, not a net negative. I’d be surprised if he doesn’t pick Elena Kagan to be the next nominee if (when?) Stevens retires after this Supreme Court term.
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p>I don’t know if this would mean a more conservative court (I doubt it), but as made clear by Stevens’s epic dissent in Citizens United, it’s clear we’d be losing a valuable member of the Court.
the court would stay the same I’d imagine. I just worry if Obama doesn’t win reelection and we lose Steven or Ginsberg during a Republican president.
With the Free Speech for People group is that they are proposing not “different types of legislation” but an Amendment to the United States Constitution: http://www.freespeechforpeople…
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p>I also strongly disagree with the bare majority decision in Citizen’s United. Basically, I agree with Justice Stevens who wrote this for the 4-person dissenters:
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p>However, I think it is important that we as a country should not be at all quick to amend the Consitution. Moreover, despite attempts on issues like flag burning and the “right to pray,” never before have new amendments to the Constitution been used to “clarify” judicial interpretation of the First Amendment or any of the original Bill of Rights.
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p>12 of the 17 new amendments deal with the basic governmental structure/voting rights (including the 11th, 12th, 16th, 17th, 19th, 20th, 22nd, 23rd, 24th, 25th, 26th, and 27th amendments).
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p>The 18th and 21st are the prohibition amendments. While the 13th and 15th amendments abolish slavery. And the final amendment (the 14th) is perhaps the most important of all, extending the Bill of Rights most important protections to citizens with respect to state and local government.
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p>The Free Speech for People fall outside of this cautious tradition, proposing an amendment to the First Amendment. This is simply not an appropriate subject matter for an amendment. For the record, I would similarly argue that amending the Constitution to say that “marriage is the union of one man and one woman” would also be an inappropriate use of the important power to amend the Constitution. As would have been an amendment offered pre-Heller “clarifying” that the Second Amendment applies to an individual right to keep and bear arms.
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p>We, as a society, simply must continue to amend the Constitution only on the rarest of occasions and in a limited way that does not seek to react to every Supreme Court ruling that interprets the Bill of Rights. Our system is better than that.
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p>It’s hard to amend the Constitution — so you can be sure that even if someone attempted this kind of a response to every SCOTUS ruling, they wouldn’t get very far.
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p>The Constitution was built to be changed when it no longer served the desires of the people. If the rules which were written 100s of years ago no longer precisely serve our needs, then we ought to change them.
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p>The US Constitution isn’t on stone tablets, and the authors were neither Moses nor God.
I have what some consider shockingly little respect for the “Founding Fathers” and don’t believe in God.
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p>And I believe firmly and deeply that the Constitution is a “living document.” I believe that history shows that the framers understood that the Constitution was written broadly and would likely be subject to judicial review. The framers thought the power of judicial review was sufficiently clear from the structure of government established in the Constitution.
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p>To this end, I think it perfectly appropriate for decision like, oh let’s say Roe v. Wade, to “find” new privacy rights within the Constitution . This is especially important and appropriate when certain laws becomes unacceptable in modern society (sodomy laws come to mind and I believe the day will come when the death penalty is seen as inconsistent with the 8th Amendment and due process).
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p>But I reject your view that “If the rules which were written 100s of years ago no longer precisely serve our needs, then we ought to change them.”
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p>We have had over 200 years to amend the Constitution and, as I laid out in my original post, have wisely chosen to amend it only 17 times. And, most importantly, we have used the amendment process primarily to deal with governmental structure and voting rights issues.
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p>The Bill of Rights, despite being written by mere mortals, are superior to the Ten Commandments. And deserve more respect and reverence. Thanks to the BOR, we have the best system of government in the history of man. And thanks to Marbury v. Madison (1803), we have judicial review and not the amendment process as our primary method of extending the BOR principles in to modern day.
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p>We do not need, nor should we seek, to change these “rules” simply because we disagree with the most recent Supreme Court ruling.
because we think they ruled incorrectly, then it’s not clear that changing the rules is appropriate (although it might be, in the interest of clarifying them). If, however, we don’t like the SCOTUS decision despite them ruling correctly — that means we don’t like our own rule. So change it.
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p>And frankly, I’m not so sure the BOR is superior. The 2nd Amendment is clearly ambiguous, well regulated and whatnot. The 4th has a clear hole w.r.t. technology — it’s not at all clear how the courts will interpret privacy w.r.t. electronic bits. The 7th specifically mentions $20. Erm, that’s problematic thanks to our old friend inflation.
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p>So I’m no legal scholar, Constitution or otherwise, but the BOR ain’t perfect, in that it just isn’t clear how to interpret some parts.
But that’s why we have judicial review, to resolve ambiguity, fill holes and address new issues that arise from more modern societal advances. Judging is hard. When it is not “clear how to interpret” the Constitution, we’ve hired these nine super-judges to do their best. It’s far from perfect (just like the BOR itself), but it’s a better system than a non-Constitutional system.
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p>P.S. I can’t think of a single case where I thought the SCOTUS ruled correctly but then I disagreed with their opinion. Even if there was such a case, I still think the BOR is such a powerful statement of governing philosophy that we must think long and hard before amending it based on a single SCOTUS decision.
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loquaciousliberal-
First my disclosure: I’m working with Free Speech for People (www.freespeechforpeople.org) as general counsel. The reason I’m doing so is that I respect but disagree with your characterization of previous amendments and this one. Free Speech for People fits exactly into the careful but determined tradition to make democracy work for everyone. Amendment is how we ended democratic barriers based on race, gender, economic class (poll tax). It’s how we got Senators elected by the people. Amendment is even how we got authority for the American people to enact a graduated income tax, overruling a Supreme Court case invalidating that authority. In my view, working for an amendment movement in response to Citizens United is entirely consistent with the “great and extraordinary occasions” that have required amendment in the past.
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p>The result in Citizens United is not about a policy difference. it’s not even about differences in various respectable interpretations of the First Amendment. It’s about the most fundamental question a democracy deals with: who is a citizen and is entitled to participate in self-government? Either corporations (state-created entities) and their literally trillions of dollars of revenue are entitled to participate in elections and self-government or they’re not. In my view, if we accept that the answer to that question comes from 5 Justices and the American people are literally prohibited from deciding that corporations are not included in self-government of the people, our democracy will no longer be what it was, nor what it was intended to be. It is certainly, as Justice Stevens’ dissent says, a “radical departure” from what the First Amendment is all about.
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p> A few years ago, a bipartisan commision published “Great and Extraordinary Occasions” Developing Guidelines for Constitutional Change
A Publication of Citizens for the Constitution, A Project of the Century Foundation. I think Free Speech for People fits the guidelines for appropriate amendment exactly:
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p>1. Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?
2. Does the proposed amendment make our system more politically responsive or protect individual rights?
3. Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?
4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact?
5. Does the proposed amendment embody enforceable, and not purely aspirational, standards?
6. Have proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?
7. Has there been full and fair debate on the merits of the proposed amendment?
8. Has Congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?
This is a good, thought-provoking post. I think you are quite correct that the decision opens up new avenues for pressing corporate responsibility, particularly as far as increasing the importance of shareholder democracy.
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p>In the immediate future, the decision provides a good opportunity for the Democrats to pivot towards a more populist stance, as at least Obama appears to be doing. House Democrats should introduce a non-binding resolution blasting this decision as a corporate give-away. Democrats should also point out how the decision reminds us of the Bush legacy — giving more rights to powerful interests at the expense of average Americans.
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p>A small step, but one that is very appropriate in this political environment and at least allows them to do something positive in the midst of the health care debacle.
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p>That’s where the Democrats can regain their footing and Obama can regain some credibility. With the GOP working against Wall St regulation, the populist message should play well around the country.
And I think not only should the Dems go populist, they should employ Apple Computers’ design strategy.
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p>Pass 10 page bills, lots of ’em if necessary. Simple things, with simple talking points. No omnibus.
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p>Doing this will allow people to hear simple and correct explanations of what the Dems are passing and the GOP is stonewalling.
to powerful corporate interests should be hammered again and again and again. This is the right thing to do and also a winning theme.
Definitely, it is a potentially winning political strategy and the right thing to do to leverage both the Citizens United decision and the national recession to push for greater corporate responsibility, more effective government regulation and shareholder rights.
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p>But, I am concerned about the political ability of Obama and the Democrats to be heard above the Republican spin machine. As Brown’s victory shows, too many voters are convinced that the ARRA was a primarily a “bailout” and confuse the Obama “economic stimulus package” with TARP. Obama gets little to no credit for $288 billion worth of tax cuts (37% of the bill!), the right wing has managed to effectively criticize the rest of the bill as “doing nothing about jobs” and very few voters understand the importance and effectiveness of the unemployment benefits, Medicaid and state fiscal relief parts of the bill.
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p>Most recently, Obama is talking about more regulation of banks but the voters here “new large taxes” from the Republicans enough and they’ll start to believe it.
The way I see it, though, is that the Republican spin machine will be operating full-tilt no matter what Democrats do. I’ve heard the argument that we shouldn’t press the bank tax or new corporate regulations because the Republicans will say it will raise taxes and hurt small businesses, but this is not for me a compelling argument against doing it. The Republicans will always say these things, regardless of merit. Being worried about potential Republican attacks is not reason enough to back away from populist policies.
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p>While I’m more of a technocratic policy wonk than a populist at heart, I recognize that populism (left and right-wing) has long been an important part of the American character — and is certainly a big part of the current political environment. The problem is that the left-wing populist argument has been overshadowed by the right-wing version of populism, mostly because it hasn’t been consistently made. It’s the perfect time to change that.
I think these arguments hold validity independent of the outcome of Citizens United. With the radical outcome of the case the issue now is the existence of a political opportunity to rein in corporate power. I think progressive legislators can lead with some forms of legislation, but what they propose will inevitably be watered down.
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p>Can rank and file progressives, and the various organizations constituting the progressive movement turn this into an enduring issue? Can corporate power be made part of the political dialogue in a big way?
ExxonMobil is called for jury duty; half of Brockton has to be used to house the prospective juror’s money.
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p>Monsanto fails its driver’s test; has to bum rides from ADM for three weeks.
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p>Halliburton is drafted into the army; stop loss policy ended.
…is play the game by the new rules. The complaint is about corporations, but it also applies to unions and non-profits, doesn’t it? Certainly there are big sources of money on our side too. George Soros or Warren Buffet could finance plenty of ads for our candidates out of pocket now.