Thursday, February 11, 2010

Interesting Times...

¡Hola! Everybody...
Many things have happened in the last few weeks, few of them good. We lost a national treasure and fierce champion, Howard Zinn. Air America, the only response to the overwhelming noise of right-wing hate radio went under, and an airhead troglodyte republican won Edward Kennedy’s senate seat.

But the worst thing that happened is something you may not have paid attention, the controversial SCOTUS Citizens United v. Federal Election Commission decision granting corporations the same rights a people...

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-=[ Slavery ]=-

Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that property is a person.

-- David Cobb

We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

The Supreme Court, Citizens United Decision

I believe that as Americans, we expect to be treated equally. You know, the “one person, one vote” thingee... the “We the people... ” meme. There’s no executive coach in the NYC Mass Transit system. The well-to-do are jostled with the working poor, upper management rides in the same car as the peons. It’s very democratic.

But the SCOTUS’ Citizens United decision may do away with such egalitarian notions...

We live under the Chinese curse of “interesting times” it seems. Look at it this way: my organization could fire me if they don’t like my blogs. In fact, corporations often limit what their employees may wear, what their T-shirts say, or what political messages they may post on the walls of their cubicles/ offices. With the Citizens United decision, the corporation itself will now enjoy the full range of First Amendment benefits limited only by the size of its bankroll in setting up whatever technology can best drown out everyone else’s voice.

One of my fave legal writers (over at The Nation), Patricia J. Williams, has a great piece on the Citizens United debacle. She asks an important question:

“... the questions on many minds are why ‘freedom’ (as in speech) has become the functional equivalent of ‘expenditure’ (as in money) and why on earth corporations are considered ‘persons’ to begin with.”

Ms. Williams goes on to give a brief history of legal “persons” showing how the concept grew out of the necessity for businesses to negotiate as well as to be accountable. For example, when a company sells a defective product, you sue the company -- not the individual executives or employees. In other words, the company is a kind of legal “substitute” for a person, with that status embedded in the interests of contract and property law.

From this basis the Roberts court dismantled over a 100 years of precedent and cynically ruled that corporations are entitled to the same range of civil rights as actual, fully endowed people (You know people, as in, “We, the people... ?”). Ms. Williams brings up the core of the issue when she asks:

“... for whom is our Bill of Rights? Is a corporation really a ‘who’ or a ‘whom’? If a public ‘person’ is capacious enough to encompass a privatized ‘corporate’ plurality, then are ‘We, the people’ not thereby reduced by propertied fiefdoms huddled behind a facade of ‘free’ republicanism?

In other words, Ms. Williams is saying that granting huge multinationals with economic powers that overshadow entire nations, then the rest of us are relegated to second-class citizenry. She makes the important historical point that enfranchisement was once calculated according to such measures as the “three-fifths of a person” rule. Does not this ruling bestow corporations a magnified role of personhood? Doesn’t this ruling diminish the rest of us to three fifths?

No one seems to be asking some important questions here. For example, “Where is the corporation?” “Has anyone ever seen a corporation?” We might see transactions happening, or economic movement, just as some of us swear we’ve seen angels or witnessed miracles. But does that give us the right to confer personhood on such notions? In the past, the type of legal thinking that led to the Citizens United decision was called “magical” or “supernatural” thinking. Today it’s passed around as the best legal thinking of the land.

What’s next? Giving the Geico gecko personhood or Bugs Bunny or Daffy Duck? You laugh, but it’s not a joke. It’s a recipe for indentured servitude for the rest of us.



Addendum: A comment by my friend Will, and several discussions with friends in the legal profession (all who gritted their teeth about this decision but accepted it), prompted me to add the following. It seems to me that many are defending this decision on the grounds that the First Amendment is absolute, but this is pure fiction:

Free speech has never been an absolute. If I yell too loudly, I can be charged with disturbing the peace. If I swear on the radio or TV, I can be fined or taken off the air. If I say I’m going to commit some terrorist act or assassinate a government official, I’ll be arrested right away. There are slander and libel laws, copyright laws, I could go on and on. Treating free speech as an absolute is completely wrong:

A corporation is an artificial entity, created by people, governed by laws and rules. This is simply the Supreme Court changing the rules to give corporations more political power. It has nothing at all to do with the First Amendment. That is just an excuse for the transfer of power from people and to the biggest corporations.

Finally (and most importantly at least for me), the reality is that spending money is not the same thing as speech, and when you treat them the same, it gives those with more money a huge advantage. They already have a huge advantage over those with less, and this decision is another way to give more power to those with more money.


  1. As much as I have to grit my teeth and hate it, the Court was right - to rule any other way would be to legislate from the bench, which is wrong in its essence.

    If we really want this changed - then we need legislation which counts - real law, passed by Congress, delineating the difference between personhood and corporatehood, and banning lobbying or the purchase of legislative favor.

    Of course, that's never going to happen.   Our Congress, along with most other aspects of public life, is corrupt....

  2. Sorry Will, but I couldn't disagree more with your position. This SCOTUS ignored 100 years (or more) of legal precedent to confer personhood on somethjing as superstitioius as a God-in-the-Sky. To say it's "legislating from the bench" may have a legal leg to stand on, but it's by no means so cut and dried (as relected on the very slim 5-4 ruling). The initial 1976 Buckly decision was itself extremely controversial, but United Citizens takes it to a whole other level. It's a legal disgrace. Money now equals freedom of expression.


  3. Very interesting
    I enjoyed visiting your blog
    God Bless;<span>   </span>

    <span> </span>

  4. Will, your comment and several discussions with friends and colleagues in the legal profession prompted me to add an addendum. I the follwing part addresses your concerns. I would add that this decision IS leglislating from the bench:

    "... the reality is that spending money is not the same thing as speech, and when you treat them the same, it gives those with more money a huge advantage. They already have a huge advantage over those with less, and this decision is another way to give more power to those with more money."


What say you?


[un]Common Sense