The Nancy Pelosi’s of this world are shown, yet again, to have no clue when it comes to how democracy actually is supposed to work here in this country (or anywhere else, if “work” means generically successful in organizing stable, fruitful society for generations on end). A couple years ago, the Supreme Court struck down the constitutionality of section 441B of Title 2 of the US Code (election law), put in place by the McCain –Feingold act of 2002, a legal mistake if ever there was one. This section was the one that introduced a direct suppression of free speech by corporations: it outlawed so-called “electioneering communications” within 60 days of a federal election by any corporation whatsoever. The law was considered problematic to begin with, and President Bush when he signed it did so with publicly stated misgivings about its constitutionality. Now that the SC has struck down this provision in Citizens United vs. FEC, Pelosi and crew are foaming at the mouth and calling for a constitutional amendment:
The People's Rights Amendment Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons. Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution. Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
A brief glance at the first sentence provokes awe and wonderment, that supposedly savvy political operatives can so badly mis-align a mere 14 words, the second part of the sentence, against reality and political intelligibility. Forget, for a moment, that Pelosi is a liberal’s liberal, and you will notice that those words would strike down all sorts of rights dear to liberals. Like, for example, the freedom of all of the media corporations. The First Amendment’s protected freedom of press would cease to apply to the New York Times, but only to humans employed by the NYT. The corporate entity could not claim any relief from suppression of speech, and would have no standing to sue for protection of the press from government interference. Nothing in the 4th amendment would protect the NYT building from unreasonable searches.
To see how this appallingly stupid (yes, evil too, but for the moment let’s just limit it to the stupid part) set of words is justified, let’s look at the website’s justification.
A sharply divided Supreme Court decided that the American people are powerless to stop corporations from using corporate funds to influence state and federal elections. The 5-4 decision ruled that the restrictions on corporate expenditures in elections contained in the federal Bipartisan Campaign Reform Act (known as BCRA or “McCain-Feingold”) violated the First Amendment protections of free speech. The ruling dramatically expands the new “corporate rights” doctrine that has transformed the First Amendment in recent years, and exposes an already-corrupted political process to a new flow of billions of dollars of corporate money.
What’s really going on here is that Pelosi and crew are out to use the public antipathy to corporate profiteerism and make that hatred carry the burden of preventing corporations from having a say in politics. What’s RIGHT about it is that corporate focus on profits can and does pollute politics. What WRONG about it is that it paints the profit motive across the entire spectrum of corporations, which is simply inaccurate, and creates a presumption that associative endeavors are not protected except by explicit positive law. The immediate and outspoken reaction from non-profit corporations was against McCain - Feingold, from liberal, conservative, and non-partisan orgs (including the CA State Democratic Party and the Environmental Defense Fund): the bill freezes them out of the political arena without any profit motive necessarily infecting the political speech. The brush is much too broad.
The People’s Rights group claim that the SC decision fails to note the distinction between associations and corporations.
A corporation is not just like any other association of people. A corporation is a specific creation of state or federal statute that may only be used for purposes defined by the state or federal statute that permitted the creation of the corporation. While Justice Scalia has claimed that corporations are like other associations of people, this is wrong. “Those who feel that the essence of the corporation rests in the contract among its members rather than in the government decree . . . fail to distinguish, as the eighteenth century did, between the corporation and the voluntary association.”
One can be misled by this because it does have some ring of truth, but it falls short of the reality by quite a bit. Corporate law is indeed a construct of the state, and so it need not have been constructed the way it has. But it is simply faulty logic to conclude from this that each corporation is wholly a construct of the state that defines its corporate status. This can be seen easily in the fact that many, many small businesses and associations were in existence well before they incorporated, and they retained virtually all of the essential organizational meaning and purpose when they became corporations. They took on the privileges and constraints of corporation structure by the change, but they did not cease to be associations and small businesses with the same operating practices, the same personnel, the same long term objectives, etc. To become a legal corporation isn’t automatically to cease to have other characteristics, such as an associative history and meaning.
Oddly, although this group seems to think that associations – when not corporations – are somehow removed from the taint of being “creatures of the state” that are limited to only the rights explicitly granted them by law, the proposed amendment does nothing to carry out that point of view. Since associations are no more "natural persons" than corporations are, the amendment would freeze out associations as well as corporations, so the argument that corporateness is a creature of law is irrelevant after all. The big show about corporations is all trumped up, the amendment falls just as heavily on the rights of non-corporation groups.
The fundamental point is that there is nothing about the notion of corporate-ness or association, that makes us want to freeze them out from political speech altogether. One of the reasons people associate as a formal body is to be more effective in making a point known and accepted, such as political parties. According to Pelosi’s amendment, political parties may be frozen out of campaign speech, since they aren’t human persons. If one wants to pay attention to the corporate format, there is nothing about this legal structure that inherently makes it an association that MUST NOT BE PROTECTED in its political speech under the 1st amendment.
And I say that in spite of the fact that I often look askance at the way large groups DO carry out political speech: Organizations which are formed to carry out a purpose that is not directly political will sometimes speak out with an official point of view that is not in keeping with its membership’s points of view on politics – such as business corporations and labor unions. I tend to think that these organizations ought to have limits on their political speech, but not because the first amendment has no bearing on them, but because their MEMBERS have prior first amendment rights that are abrogated when the larger body speaks about an issue that is apart from its basic purpose for existing. Let me take an example: a large business like Target is incorporated, and its fundamental purpose is to provide retail goods for customers and provide profit to its shareholders. One can easily imagine a situation where Target, as a for-profit entity, will be hurt by a certain law, but where its shareholders and employees and customers are, by and large, in favor of the law because the law serves more important goals than profits for the shareholders and/or work for employees and/or retail goods for customers. The fact that Target has a “corporate point of view” about the value of the law should not be allowed to speak in place of the point of view of the people who make up the company, as if Target and its shareholders constitute two separate and equal points of view before the body public. If Target speaks with money that would otherwise go to the shareholders, then those shareholders have to use up their own separate money just to get the playing field back to even, and then begin to have an impact on public opinion – like a body at war with its own cells. It’s irrational. This point is made in a dissent by Stevens, but he draws the wrong conclusion from it. The point isn’t that corporations are being treated just the same as humans, but that nothing about incorporating constitutes an inherent rational basis to limit the otherwise general applicability of 1st Amendment rights of speech and association. You can insist that the 1st Amendment applies without claiming that corporations are to be treated exactly as humans.
To be rigorous, the 1st Amendment must apply to associations (including corporations) because it explicitly speaks to the right to assemble, but the application to associations is inherently secondary to its application to humans. Therefore, application to associations can reach a limit when that protection damages the capacity of humans to accomplish their own free speech and association – which is exactly what happens typically when a for-profit corporation or labor union sticks its oar in on a political question that is larger than the explicit purpose of existence of that entity. A labor union member who must belong to the union in his job, and must pay dues, cannot exercise his freedom to speak and associate in a manner of his choosing if those union dues are used to support a point of view he opposes.
As a result, I don’t think that the Supreme Court has, just yet, located the necessary principles to sort out the best holding in these FEC cases, but Pelosi has found a much worse way to do so. When you form an associative entity explicitly to speak more effectively in the political arena, freezing you out of the arena because you have associated is per se a violation of the First Amendment principles for the rights to speech and association. Nothing about associating under those conditions causes there to be some reason for the First Amendment not to protect your associative efforts to speak.
Let’s not forget the underlying ultra-left perspective that infects the Pelosi’s of this world: there should be nothing but the state and the individual. All other intermediate entities are to be frozen out of existence. We must have a naked public square, where the family, the church, the neighborhood association, the business corporation, the community charity, and the private university are all to be suppressed. They may be permitted to retain their facades, but only if they lose all independent capacity: they may only speak when the state tells them to speak, they may only act just so far as the state tells them to act by positive prescription. That’s the ultra-left utopian view of society.