Detailed Abstractions

On Thursday January 21st, the Supreme Court of the United States dramatically departed from past court decisions, by declaring McCain/Feingold’s restrictions on corporate speech prior to elections as unConstitutional.

In doing so, the court not only overturned parts of  McCain/Feingold, but went further in overruling prior courts which held that even with respect to speech, corporations can be seen as uniquely different from individuals and therefore while individual speech could not be regulated, corporate speech could be.

In a close, 5-4 decision, the court returned to its Constitutional roots, by removing an arbitrary distinction prior courts added to the Constitution years ago.  I’m not positive how prior courts held “congress shall make no law abridging the freedom of speech….” actually meant:

Congress shall make no some laws abridging the freedom of speech, based on the arbitrary notion that corporations spending money towards speech is different from individuals spending money towards speech.

Readings from around the web would have you believe however that this is a travesty of justice.   From the Baltimore Sun, an op ed entitled Supreme Court tramples the little guy giving you a heads up to what they believe:

The 5-4 decision by the Supreme Court allowing corporations to pour millions into federal elections is frightening and dangerous (“And now, the deluge,” Jan. 25). Even more alarming is that many of us never saw it coming….

The NY Times holding up Justice Stevens dissent (here) to make their point:

…But there was no mistaking his basic message. “The rule announced today — that Congress must treat corporations exactly like human speakers in the political realm — represents a radical change in the law,” he said from the bench. “The court’s decision is at war with the views of generations of Americans.”….

Indeed, allowing corporations to speak is equivalent to putting the mentally retarded to death:

That was the plainspoken style of the last years of Justice Stevens’s tenure. In cases involving prisoners held without charge at Guantánamo Bay and the mentally retarded on death row, his version of American justice was propelled by common sense and moral clarity, and it commanded a majority….

The Huffington Post (of course…. here):

…With the Supreme Court ruling by the “Fabulous Five,” Citizens United v. Federal Election Commission, a single corporation will be able tap into its deep pockets and disfranchise a million citizens. A group calling itself “Citizens United” has just won a fight to give huge corporations more control over our politics….

& a little more thought out, but the same basic premises @ NewsWeek (here):

…The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money—without their consent—into ads supporting or attacking federal candidates….

From just these few examples, you can see most of the talking points against the decision.

#1 is the “conservative” court has radically departed and conservatives are against activism.

First, the attempt to make “conservative” somehow interchangeable with radical change is transparent and childish.  Either the evidence stands by itself or it does not.

But… for the radical departure… let’s look at the majority opinion written my Justice Kennedy:

…In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (SCALIA, J., concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us….

Indeed it’s idiotic to think that stare decisis, the principle of following court precedent, should compel them to vote in any particular way and I think most people would agree.   I think it intuitive that the opponents of this decision don’t believes that relying on stare decisis would have been a good argument for continuing separate but equal, but they do act here as if all the sudden, stare decisis is as immutable as the law of gravity.

#2 Corporations will now poor billions into campaigns, distorting politics, and overall damage our way of life.

To begin with, this basic idea has so many non-proven assumptions built in, it can be easily dismissed with logic alone.  The theory has to hold these things to be true:

a)  Corporations will automatically jump into advocacy of political ideas through spending.

This fails because as we all know, you don’t talk about politics in polite company.  Businesses are not stupid enough to advocate for candidate X, when they know 50% of the country is for candidate Y.  There is simply not enough pay off they can get from candidate X that would suffice for the loss of revenue for those supporters of candidate Y.

b)  Even if corporations do spend millions to influence elections…

It does not follow that corporate money would somehow be more nefarious than individually spent.  Is it not possible that a corporation’s political interest might also be the interest of the people?

It also does not follow that this money would automatically influence any specific election.  This assumes  a sizable  percentage of people, enough to effect the outcome of a vote, can be swayed by ads to vote against their own self interests.

It might be unwitting or without malice, but the thought that you’ll be ok, but the masses will be swayed into some corporate slavery is insulting and arrogant.

But that’s just me – what say Justice Kennedy?

…The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corporation or any other speaker. McConnell, supra, at 144 (quoting Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000))….

…The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . expenditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.  Ingratiation and access, in any event, are not corruption….

Furthermore, Congress can’t fix a supposed problem by removing rights:

…When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption….

#3 Corporations are not humans and therefore are not afforded rights.

This fails the basic test with the rest of the bill of rights, as while it’s true that a corporation is nothing more than a legal entity and not a human, removing a corporations’ rights results in real human damage.

For instance, because corporations are not human and therefore don’t have rights, then it would follow corporations also don’t have rights to a speedy trial or protection from unreasonable search and seizure by the government.

I’m not positive, but I don’t believe these opponents honestly want the government to be able to seize financial records or phone records simply because they belong to a corporation which has no rights.

& lastly #4 Shareholder money should not be spent on political campaigns for which shareholders’ disagree.

This is actually an idea that I’m semi-sympathetic to… as a libertarian, ethical capitalism standards as spelled out by Milton Friedman, and even in a legal sense, I believe that corporate profits of public companies should either be reinvested into the business or paid out to the owners or shareholders.

But I can also view reality for what it is and notice the obvious:  corporations are routinely spending a portion of their profits on their pet charities, often at the behest of liberal groups proclaiming loudly that corporations have a responsibility for being good social citizens.  I’m not sure why PETA should be able to get corporate dollars, but a specific candidate…. but here we are.

Having said that, so long as shareholders aren’t being forced to buy stock and so long as they are able to freely sell when they want, then forced to invest in political speech with which they disagree, is an abuse of the word force.

Additionally, the same logic which holds true with consumers holds true with investors.  If a corporation went out of their way to play into specific political campaigns, investors just as consumers, can look elsewhere.

Justice Kennedy?

…The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. See supra, at 35–37. Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. See Austin, 494 U. S., at 687 (SCALIA, J., dissenting). Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech. The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.” Bellotti, 435 U. S., at 794; see id., at 794, n. 34….

Going further, he points out how the law doesn’t fix what they claim to disagree with here:

…Those reasons are sufficient to reject this shareholder protection interest; and, moreover, the statute is both underinclusive and overinclusive. As to the first, if Congress had been seeking to protect dissenting shareholders, it would not have banned corporate speech in only certain media within 30 or 60 days before an election. A dissenting shareholder’s interests would be implicated by speech in any media at any time. As to the second, the statute is overinclusive because it covers all corporations, including nonprofit corporations and for-profit corporations with only single shareholders. As to other corporations, the remedy is not to restrict speech but to consider and explore other regulatory mechanisms. The regulatory mechanism here, based on speech, contravenes the First Amendment….

In fact is appears as if all opposition to this decision is based upon a fear that by allowing normal people to be subjected to political speech paid for by corporations, freedom as we know it is ending.

Just like religious fundamentalists who want to ban books because the mere availability of fictional smut can lead to the downfall of man, without a hint of irony these people demonstrate their religious-type devotion to the exact same thought:  you are neither  strong nor smart enough to handle a free and unfettered marketplace of ideas.

Justice Kennedy concludes:

…Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make thi political speech a crime. Yet this is the statute’s purpose and design.

Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” McConnell, supra, at 341…

Read entire opinion here.

Unintended consequences.  An often used phrase for almost every piece of legislation pushed our politicians.  Whether it’s McCain-Feingold’s chilling effect on free political speech or whether bailing out banks which are “too big to fail” has actually decreased our long term viability instead of supporting it; the term seems to connote any consequence which wasn’t expressly mentioned by proponents of the bill.

Technically, that’s correct.  The definition of unintended consequences does not require the consequences to be unforeseen, though in common language we generally use the base meaning of “intention”.   Therefore the phrase has come to mean those consequences which were neither  intended nor unforeseen.

I submit however, that we should start changing our language and call known consequences intended consequences, because like the citizens in the face of the law our politicians should be held to the same standard: ignorance is not a defense.

Regardless of the human failing that pushes people to believe they, or their elected leaders, can ultimately control behavior which is already constrained by the marketplace, acting as if the results weren’t readily understood is disingenuous.

Looking more closely @ McCain-Feingold effects, we see the chilling of free-speech (here), where citizens can’t create a documentary on their beliefs about Hillary Clinton without it being subject to regulation:

…The case before the court, Citizens United v. Federal Election Commission, originated over whether a 2008 feature-length movie critical of then-presidential candidate Hillary Rodham Clinton could be classified as an “electioneering communication” subject to regulation.

The FEC contended it was, and that its sponsor, a conservative advocacy group called Citizens United, was barred from promoting the film. While nonprofits can be exempt from campaign-finance regulations if they limit their fund-raising to donations from individuals, Citizens United fell under McCain-Feingold because it accepts business contributions….

Now.  I haven’t seen the movie nor do I care to, but when individuals get together to use their own money, their own resources, to produce their own political speech, the government has absolutely no right to be involved.  In the marketplace of political ideas, that whole “congress shall make no law” thingy, seemed pretty straight forward.

Regardless of your reading of the 1st Amendment, some will contend this is an unintended consequence.  I contend it was a known consequence and therefore must have been intended.

I will even go further and say this was like a consequence well enough known by politicians who voted for the bill, that they had incentive to pass restrictions on others as this would help them secure the current balance of power.

Using banks too big to fail (here):

…Increased concentration is vexing for regulators. Because systemically important firms can borrow more cheaply thanks to implicit state backing, small and medium-sized banks struggle to compete. A recent Fed study put big banks’ funding advantage at more than 30 basis points. That leads to another possible problem: indiscipline. Private firms with a low cost of funds and the taxpayer behind them are prone to recklessness: just look at Fannie Mae and Freddie Mac. America’s leading banks were too big to fail before the crisis. Now they are bigger still….

This was not only easy to foresee, but libertarians, conservatives, small business groups, think tanks, economists, literally, tens of thousands of people wrote and discussed that this is exactly what would happen.

Once you’ve effectively told the market that they will not be responsible for their failures, you’ve written them a blank check to become much more reckless than they would have otherwise.

Not only this, but that action, more reckless businesses, will have it’s own well understood consequence.  The banks will continue to make stupid decisions due to a perceived lack of risk.  As long as people allow it, the government will continue to bail them out until it becomes just too expensive.  Then during that emergency, we will see much greater regulation and control of the financial industry which might include a government takeover.

As Hayek stated and history has shown:

‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded.

Maybe it’s time to start holding our politicians & leaders accountable for the known consequences & not just the stated ones.