Friday, January 22, 2010

Supreme Court Liberates Corporations from Shackles of Oppression

The Supreme Court has just handed down a decision - Citizens United vs. Federal Election Commission - that gives corporations almost limitless power to influence elections. My own opinion is that this is a terrible outcome, and is going to shift power even further from the weak to the powerful. But even more disturbing is the basis for the decision - the First Amendment command that "congress shall make no law... abridging the freedom of speech." The drafters of the First Amendment unfortunately moved on to the next amendment (the gun nut one - not exactly a masterful piece of drafting either) before specifying just exactly whose speech it was that was not supposed be abridged. You might think it’s obvious that the speech in question was supposed to be limited to that of human beings. Dolphins can speak, but no-one thinks the Constitution is supposed to give them rights. But apparently it’s complicated. Central to the Citizens United decision was the question of whether corporations have free speech rights.

Here is what the court had to say: "Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people." "Speech restrictions based on the identity of the speaker are all too often simply a means to control content." "Political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual." "By suppressing the speech of... corporations... the Government prevents their voices and viewpoints from reaching the public." And here is the clincher: "Wealthy individuals... can spend unlimited amounts on independent expenditures... yet certain disfavored associations of citizens - those that have taken on the corporate form - are penalized for engaging in the same political speech."

Got it? We must not discriminate! A corporation can’t help being a corporation. Just because a speaker happens to have been born a corporation (or do corporations choose to be corporations?), why should its opinion be any less valid than yours or mine?

To be perfectly clear, the Citizens United court was not considering the free speech rights of people who work at corporations or live near corporations or are otherwise affected by corporations. It was considering the rights of corporations themselves. I am all about corporate directors and officers and shareholders and employees having strong opinions about who should be president and whether global warming is real, and spending their own money to try to make their voices heard. And don’t get me wrong. I’ve got nothing against corporations. I’m a corporate lawyer. My drawers at work are full of corporations. Some of my best friends are corporations.

But still, at the risk of sounding like a bigot, corporations are just different than you and me.

If you kick a corporation in the shin, it doesn't feel pain. (Corporations don't have shins.) If you break up with a corporation or fail to notice that it got a haircut, it doesn't feel sad. If you chain a corporation to the boiler in the basement for its entire adolescence, feed it nothing but dirty water and stale bread and make it pee in a jar, it won't even mind. Corporations are just webs of permits, contractual agreements and filings with the Delaware secretary of state. They don't have dreams and ambitions. They don't experience disappointment. They can't think. They can't talk. They’re not really anything at all. And so how can it possibly be that they should have free speech rights that cannot be abridged?

My personal list of who or what should be able to claim free speech rights, in descending order of legitimacy, goes something like this: a living adult human being, a child, a gorilla, a house pet, a fish, a shrubbery, a coffee table, a fungus and a fresh pile of dog shit. Note that corporations don't even make the list. That's right, a fresh pile of dog shit has a more justifiable claim to free speech rights than a corporation does. Dog shit has at least passed through the body of a conscious living being that is capable of some level of thought. Dog shit is full of living organisms - bacteria and amoebas and such - that move around in some kind of organized fashion and have a set function in sustaining the earth's natural processes. Corporations have none of this.

In many ways, of course, corporations are better than fresh dog shit. They’re responsible for all kinds of happy things like growing the economy and employing workers and fostering innovation and making funny beer commercials. Reasonable people can stay up all night debating how much corporations help and hinder our society. Talking about the appropriate role of corporations in our society is interesting and important. But to bolster arguments in favor of corporate power by saying that corporations must be allowed to express themselves is nuts. Duct tape and curling irons play important roles in society too, but no-one thinks their opinions should carry the same weight as a human beings’. For the Supreme Court to take this position is disingenuous at best, and a naked power grab at worst.

Any person who would make an argument like this, one that so obviously doesn’t even pass the laugh test, is either: (a) retarded; (b) on crack; or (c) trying to achieve a pre-determined outcome without having a principled reason upon which such outcome can be based. The Supreme Court Justices are not retarded. I've read their stuff and, although most of it is written by legal clerks, they've obviously got at least some minimal capacity to construct rational thoughts. They're probably not on crack. Crack is easy to find in DC, but lighting up a big rock out on the front steps of the court, right in plain view of the Capital, just doesn’t seem like their style. And so I guess that just leaves choice (c), which is scary and sad.

If I ever run into Justice Kennedy at a cocktail party, I’m going to corner him and make him look me in the eye and tell me that he really truly believes the arguments he made in Citizens United (oh, and in Bush v. Gore too, while I’ve got his attention). I’ll bet you he looks away or tries to change the subject. In the meantime, I’ll have to just keep complaining to my friends. Or maybe I’ll just incorporate a bunch of corporations. They have opinions, apparently. And they’re good listeners too.


mediaslinger said...

"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." Thomas Jefferson, 1812

David said...

The decision is just wrong.

veryfrank said...

We are in deep shit. Dog shit, gorilla shit, people shit, even dolphin shit. Is there really any help for a Progressive agenda?

Tom Degan said...

Are corporations really persons?

Do corporations think?

Do corporations weep?

Do corporations fall in love?

Do corporations grieve when a loved one dies as a result of a lack of adequate health care?

Do corporations have loved ones?

Are corporations even capable of loving?

Do corporations sometimes lose sleep at night worrying about disease, violence, destruction, and the suffering of their fellow human beings?

Do corporations feel your pain?

Is a corporation capable of having a sense of humor? Is it capable of laughing at itself? (EXAMPLE: "So these two corporations walk into a bar....")

If a corporation ever committed an unspeakable crime against the American people, could IT be sent to federal prison? (Note the operative word here: "It")

Has a corporation ever walked into a voting booth and cast a ballot for the candidate of its choice?

We all know that corporations have made a mountain of cash throughout our history by profiting on the unspeakable tragedy of war. But has a corporation ever given its life for its country?

Is a corporation capable of raising a child?

Has a corporation ever been killed in an accident as the result of a design flaw in the automobile it was driving?

Has a corporation ever written a novel or a dramatic play or a song that inspired millions?

Has a corporation ever risked its life by climbing a ladder to save a child from a burning house?

Has a corporation ever won an Oscar? Or an Emmy? Or a Tony? Or the Nobel Peace Prize? Or a Polk or Peabody Award? Or the Pulitzer Prize in Biography?

Has a corporation ever performed Schubert's Ave Maria?

Has a corporation ever been shot and killed by someone who was using an illegal and unregistered gun?

Has a corporation ever paused to reflect upon the simple beauty of an autumn sunset or a brilliant winter moon rising in the horizon?

If a tree falls in the forest, does it make a noise if there are no corporations there to hear it?

Should corporations kiss on the first date?

Could a corporation resolve to dedicate its vocation to being an artist? Or a musician? Or an opera singer? Or a Catholic priest? Or a Doctor? Or a Dentist? Or a sheet metal worker? Or a gourmet chef? Or a short-order cook? Or a magician? Or a nurse? Or a trapeze artist? Or an author? Or an editor? Or a Thrift Shop owner? Or a EMT worker? Or a book binder? Or a Hardware Store clerk? Or a funeral director? Or a sanitation worker? Or an actor? Or a comedian? Or a glass blower? Or a chamber maid? Or a film director? Or a newspaper reporter? Or a deep sea fisherman? Or a farmer? Or a piano tuner? Or a jeweler? Or a janitor? Or a nun? Or a Trappist Monk? Or a poet? Or a pilgrim? Or a bar tender? Or a used car salesman? Or a brick layer? Or a mayor? Or a soothsayer? Or a Hall-of-Fame football player? Or a soldier? Or a sailor? Or a butcher? Or a baker? Or a candlestick maker?

Could a corporation choose to opt out of all the above and merely become a bum? Living life on the road, hopping freight trains and roasting mickeys in the woods?

I realize that this is pure theological speculation on my part but the question is just screaming to be posed: When corporations die, do they go to Heaven?

Our lives - yours and mine - have more worth than any damned corporation. The Supreme Court's decision on Thursday was beyond wrongheaded. Not only was it obscene - it was an insult to our humanity.

Tom Degan
Goshen, NY

Anonymous said...

My two cents...

Does a limited liability corporation have limited liability for slander?

Seems like someone could put up a small corporation (what is the minimum funding anyway) to be liable for some big shit... get the crime done and be disposable.

Nice prospects ahead.