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Friday, January 22, 2010

Free Speech for Corporations: What Proper Constraints?

A just society would be one in which liberty for one person is constrained only by the demands created by equal liberty for another.

Ivan Illich, Tools for Conviviality, 1973, p. 41

A corporation is not a person. The law and a majority of the current Supreme Court say it is, but they are wrong. As Justice John Paul Stevens said from the bench in dissent yesterday, "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

But let's set that argument aside (as does the Roberts-Scalia wing of the Court). While I read the Supreme Court's ruling in Citizens United v. Federal Election Commission allowing corporations to donate to political campaigns, consider this scenario:

Suppose I, a person, amass a vast sum of money (through hard work and wise investing). I run for state senate against Russ Olson. Two weeks before the election, I offer the Madison Daily Leader, KJAM, and every other media outlet that reaches our district four times their going rate to buy every available ad space. Good capitalists all, they accept. I even buy up Pat Powers's whole sidebar (and send his seven kids to college). For two weeks before the election, my disproportionate wealth drowns out the message of my opponent.

Wealth is power. When is my power to "speak" so great that it threatens the liberty of others? What proper constraints may society place upon my use of my wealth to "speak" in the public sphere?

While we think about that, here's some more reading on yesterday's remarkable Supreme Court ruling:
  1. Dahlia Lithwick, "The Pinocchio Project," Slate, 2010.01.21.
  2. What's next: voting rights for corporations? Lyle Denniston, "Analysis: The Personhood of Corporations," SCOTUSBlog, 2010.01.21.
  3. See also Erin Miller's great SCOTUSBlog round-up of first-day reaction to Citizens United v. FEC.—beaucoup links!
Update 2010.01.28: Dr. Newquist understands the question of disproportionate power at which I'm driving.


  1. Corporate "personhood" is absurd to begin with. Extending rights of such non-persons is even more insane.

    Robots should be allowed to politically advertise if they generate income and are programmed to contribute if the court rationale is followed. Personhood for robots may seem like nonsense, but it is no more nonsensical than giving corporations and unions personhood.

  2. Cory,

    Silvio Berlusconi is on Justice Scalia's Christmas card list.

    General Franco slaughtered thousands of his own neighbors shouting, "Under God, the people rule!"

    Why worry now?

  3. Douglas-

    Just a thought. Perhaps corporate person-hood should be allowed, but the penalties for bad behavior should be severe. Perhaps prison time for even minor infractions.

    I think such a system would keep corporations small and on their toes.

  4. Personally, it kind of chills the Classic Liberal in me.

    If that bothers you, then the ruling that gave the organization ACORN, individual rights protected under the US Constitution should boil your blood too. The judge declared that it was... get this... unconstitutional for Congress to defund ACORN! I think the better point here, is to show in the Constitution where it is legal for Congress to fund them! http://www.personalliberty.com/news/judge-decrees-acorn-funding-cut-off-unconstitutional-conservatives-outraged-19513962/

    Jason Bjorklund

  5. As someone else said nicely, with unlimited spending we may soon have the Senator from Exxon, and your Representative from Walmart. We are headed toward becoming much more of a Corporate State.

  6. Steve Sibson1/23/2010 7:58 AM


    And the New Deal programs were ruled unconstitutional, until FDR changed the makeup of the court. Google the constitutional revolution of 1937. Imagine how quickly the deficit spending would turn to surpluses if we did return to the constitution. Of course unemployment would jump to 50% plus as government employees would have to find real work. Perhaps we need to do that one department at a time. I suggest we start with the Department of Education.

  7. Tony, if we can't get rid of corporate personhood, your recommendation for strict accountability is the next best step. Hmm... when's the last time a corporation got the death penalty for killing anyone?

    Jason, I'm uneasy with any ruling or law that gives equal personhood rights to an artificial legal construct, be it Exxon or ACORN. The question I'm posing here is about unchecked power. Do you seriously believe ACORN has the same power as multi-billion-dollar multinatinoal corporations? If you can show me they do, I'll happily share your alarm. But let's keep our eyes on the ball.

  8. South Dakota will get a dose of this very soon; and, it will take an unexpected course.


    This young man will be a force to be reckoned with; watch what he does.

  9. [Steve, I wish you were as disgusted with Justice Roberts's judicial activism as you are with the Court's rulings under FDR. And you know I'm perfectly fine with abolishing the Department of Education... which has nothing to do with the original post. Stay on topic, Steve.]

  10. As always, I'm struck by the fact that conservatives hate big government, but love big business; that big government will turn us all into mindless drones, but big business will set us free to enjoy life, liberty, and the pursuit of happiness. The truth is, corporate thinking is corporate thinking, whether government or business, and is primarily concerned with self-survival. You can't live (it seems) without either, but BOTH need regulation.

  11. Steve Sibson1/23/2010 4:19 PM


    The solution is to limit the size of government so that there is nothing for big corporations to take from the taxpayers via corruption.

    "Do you seriously believe ACORN has the same power as multi-billion-dollar multinatinoal corporations? If you can show me they do, I'll happily share your alarm."

    The point is that ACORN has mnore power than you or I. Isn't that the very premise of this post? If so, then why jump all over Jason and I for being off topic. Just becuase our solutions don't fit your wolrdview make them "off topic". And why do you have two sets of rules...one for those you agree with, and the exact opposite for those you don't agree with?

  12. Steve, the solution to massive corporate control is boycotts; unwavering shutdowns of every sector of the economy.

    Ben Bernanke, the Bush regime's lackey, is on the block; watch John Thune and the GOP leadership run away from this guy.

  13. Steve Sibson1/23/2010 6:41 PM


    Not so fast. We need the goods and services. First we get rid of big government's regulations, corporate welfare, and other barriers of entry so that small businesses can form to compete in a truly free market. Then the boycotts will be natural.

    See Eve, true conservatives are not for big business. It is a myth to view America as big government versus big business. The two actually depend on each other. That is why you saw the South Dakota Chamber of Commerce jump all over the government reforms that Initiated Measure 10 presented. IM10 would have reduced not only the size of South Dakota's government, it would have taken money out of the pockets of those special interests that the Chamber represents. I would say Dave Owens, the Chamber's lobbyist, is in Pierre almost every day of the legislative session over the past few years.

  14. Charlie johnson1/23/2010 7:09 PM

    If a corporation is allowed person hood in campaign advertising, what is there to stop any candidate to form a corporation-have it funded with his own vast resources, resort to any vicious tactics he(the corporation) wishes and totally undermine any future election without any regard to law, procedure, or resposibility. Next thing we know we allow individuals to form a corporation when they drive. If they are prosecuted for DUI, they claim personhood under the corporate name, the individual goes free, perhaps the corporation is prosecuted-most likely not. If that seems far fetched, in Agriculture, limited liability entities(they are artifcial), are able to operate livestock confinement facilities with no fear of resposibility being borne by the individuals involved.

  15. As Eve points out above, there is a "desire" in corporations, always seeking profits and growth, and this ruling allows corporations a more free rein in extending the profit motive more fully into the election of government officials. Lobbying the ones elected apparently isn't enough.

    Let's hope Lincoln's assertion that "government of the people, by the people, for the people" is still with us.

  16. "Jason, I'm uneasy with any ruling or law that gives equal personhood rights to an artificial legal construct, be it Exxon or ACORN." There, I think I've said all I really need to say about ACORN.

    Eve touches on a useful point: a corporation is programmed/obliged to think about nothing but self-survival. Corporations have an obligation to manipulate the ballot box (see Charlie's and Jand John's warnings; see also Diebold!) and all branches of government to serve their bottom line. Real people can be selfish, but they can and often do choose to sacrifice for others and for the general welfare. Corporations are useful, but allowing them into the social compact as equally righted partners is dangerous.

    I'm still waiting for a breakdown of my original hypothetical. If I have enough wealth/power to dominate the public sphere and crowd other voices out of the conversation, should the government check my power?

  17. Steve Sibson1/24/2010 7:45 AM

    "If I have enough wealth/power to dominate the public sphere and crowd other voices out of the conversation, should the government check my power?"

    No Cory. The people are to check that power. What you fail to understand is that the current government actually aids in the centralization of power. Socialism as created "corporate socialism". The only cure is to reduce the government to the limits placed by the constitution and return the power to the people. That will then be a true free-market capitalist system. Where one who enjoys too much profit, competiton will take away.

  18. "No Cory. The people are to check that power."

    And how do they do that? Demonstrations? They don't actually do a lot except provide media fodder. Boycotts? Some of the most die-hard anti-China people I know shop at Walmart because it's cheap: and their wallet is primary with them. Take it to the courts? Well, the Supreme Court has shown where it stands in the little guy vs. the big guy. The little guy loses. Take it to the legislature? The corporations, as has been said over and over again, have paid for most of the legislature's campaigns.

    Actually, Steve, historically socialism has not been corporate - it's fascism. Benito Mussolini, the founder of Fascism, said: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power."

  19. Heard a story about Abe Lincoln recently that relates to Steve Sibson's comments..even if Steve even invents "facts" no and then too.

    Lincoln's story: Farm boy runs up to his dad and says, "Sis and the hired man are up in the hay loft and they have their clothes off. I think they are getting ready to urinate on the hay.

    Father says, "Son, you have the facts right, but your conclusion is wrong."

  20. Steve Sibson1/25/2010 8:03 PM

    "And how do they do that? Demonstrations?"

    No Eve, the free market. We need to get rid of the government's interference first. Yes, In know, esier said than done. If we can get Cory to understand that truth, then anything is possible.

    And I do agree with your point about fascism. Although that line seems to have been crossed with General Motors and Chrysler.

    Keep up the fight Eve!

    Douglas, keep up the humor! How is the snow in Winner?


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