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A Suggested Congressional Response to the Supreme Court’s "Citizens United v. FEC" Decision
As the Supreme Court today has ruled that corporations (and unions) have a 1st Amendment right to spend unlimited amounts of money on politicians, political campaigns and political issues, I’ve given the matter some thought and here is how I would suggest that Congress legislatively respond to this monumental travesty:
1. Require a vote by the shareholders or the membership on each and every instance of political funding by corporations and unions. No funds may be spent prior to such a vote.
2. A majority (51%) of shareholders or membership voting is required to approve each and every instance of political funding.
3. A majority of total shareholders or total membership (51%) must have voted for any vote to be approved.
4. In respect to corporations, each shareholder has a "single" vote regardless of the number of shares possessed. A person or organization that has one share has one vote. A person or organization that has multiple shares has only one vote. . This prevents any chance that a person’s or organization’s "wealth" determines how many votes they have.
5. In conjunction with 4 above, a corporation consists of all of its entities, subsidiaries, divisions, companies or any other structural construction or combination.
6. No instance of political funding by corporations or unions may be spent until:
a) The results of the vote have been publicly certified by the FEC.
b) The results of the vote have been made publicly available on an online Internet FEC-maintained site.
c) The results of the vote on the online Internet FEC-maintained site are searchable and detailed with the name of each voting shareholder (person or organization) and their specific vote.
Here are some examples of how this would work:
A. Corporation XYZ or Union ABC wants to give $1 million dollars to Candidate A – 51% of shareholders or membership must vote and 51% of those must approve the political funding. The FEC publicly certifies the vote and posts the detailed and searchable result on a FEC-maintained Internet site. No funding may take place until this happens.
B. Corporation XYZ or Union ABC wants to give $100 million dollars to National Political Party B for its 2010 campaign A – 51% of shareholders or membership must vote and 51% of those must approve the political funding. The FEC publicly certifies the vote and posts the detailed and searchable result on a FEC-maintained Internet site. No funding may take place until this happens.
C. Corporation XYZ or Union ABC wants to spend $10 million dollars on a political advertisement supporting Candidate A or Political Issue C – 51% of shareholders or membership must vote and 51% of those must approve the political funding. The FEC publicly certifies the vote and posts the detailed and searchable result on a FEC-maintained Internet site. No funding may take place until this happens.
Note that this “approval” is only for a single unique advertisement. This ad may run multiple times. Any additional unique advertisement will again require a separate shareholder or membership vote.
47 Comments
Hard to believe the Court would not find this an unreasonable restraint on expression of the First Amendment right as delineated in Citizens United v. FEC. But it works for me.
MadDog,
What corporate speech do you want to ban?
Hollywood movies?
The New York Times, which I loath.
Playboy Magazine?
Please tell me.
Oh, I know. You want to ban speech you hate.
It might fly under anti-trust regs: it’s very similar.
(Utilities have to post stuff like this on their sites all the time, so that everyone can see they’re not playing favorites.)
Ban? What ban are you talking about?
Nowhere in my diary did I talk about banning corporate speech or anyone else’s for that matter.
Quite the contrary, in support of the Supreme Court’s determination today that corporations (and unions) have a 1st Amendment right to unlimited funding of politicians, political campaigns and political issues, as an equal branch, and equally authoritative part of our constitutional government, Congress can and should weigh in on the “mechanisms” for political funding.
And I don’t take the Supreme Court’s decision today to deny such a role for their constitutional equal, Congress.
I might, were I a lawyer, argue to the contrary. *g*
No corporation (or union) would be denied their 1st Amendment right to “speech” or political funding.
Quite to the contrary specifically on political funding, they can spend as much as the want.
They simply have to prove that the shareholders who actually “own” the corporation or the membership that makes up the union, are in agreement on spending the money.
What’s to complain about that?
Apologies.
Allergy medicine is screwing me up.
I don’t disagree wit you; I am merely thinking how the Roberts Court would look at it. And keep in mind that there is no reason in the world to think Obama will not appoint a centrist corporatist to replace Stevens and/or Ginsburg.
To further my argument, the executives who run the corporation or the leadership of the union, are in fact only servants of those who actually own the corporation or constitute the membership of the union.
While these folks “represent” their shareholders or membership in some things, they are not the actual shareholders/owners or membership.
The actual fact is that these individual corporation shareholders or union members are the ones who are expressing their 1st Amendment rights.
CEOs and union heads are merely functionaries who are employed to run the corporation or union.
I defy anyone to prove that shareholder/owners or union members have explicitly and permanently assigned their 1st Amendment “free speech” rights to CEOs or union heads.
No problem! I hope I wasn’t too hamhanded, but I’m guessing I was. *g*
MadDog, your suggestions are worthy of discussion, having both merit and a needful recognition of the human plight this “decision” will all but insure, the flesh and blood plight of real human beings who cannot buy their way to the Supreme Court’s largess.
However, this particular Congress, which at the moment is “home’ to the likes of Dodd (who doesn’t even reach to his daddy’s shin in moral courage) and Lieberman who doesn’t reach to a piss ant’s shin … and so on and so forth.
This Congress likes its corporate sugar daddies whose shins ain’t too demanding … being behind the bended knee (and so forth and so on).
This Congress makes lots of noise (ye olde sounde and furies … signifying … nothing). This is a Congress of fabulists led by a master, multi-dimensional constitutionally challenged fabulist.
Oh! Wait! MadDog are you suggesting that Congress will feel that the Court has overstepped its tripartite bounds?
Oh dear! The Court had best roll right over, considering how the former Congress reacted to a minor Executive overreach during the (Court fashioned) Bush-Cheney era.
Geez, MadDog I hope to hell I’m wrong about this, but I suspect that Roberts wanted in on all the kabuki fun the other branches have been having and you just know ole Clarence is working up to some disgusting display of twisted self-loathing (at everybody else’s expense).
Besides, the Media are confuselated and not at all certain where their bread is buttered in this internectine spat among the Powers That Be (who are all increasinly dimished by the Masters of the Universe … who own all of them anyhoo).
Well, I wish us all good luck and better “news” tomorrow.
(I get my news at FDL: It may not always be pleasant, but it is, most likely, the truth).
DW
Yeah, I hear you re: the Robert’s wing of the Supremos.
Though if the Congresscritters were folks with both subtlety and strength, they could possibly legislate in such a way that even the Robert’s wing would get the message and defer to their equal.
I’m not holding my breath either, but the very negative public reaction of Democratic Congresscritters, and more important perhaps, from the Constitutional lawyer himself, President Obama, tends to give me a sliver of hope.
I know, I know. Ye olde Hope-a-Dope.
An additional suggestion that I’ve come up with is to charge a “fee” for each political funding instance (a percentage of the “contribution”) in order to fund the FEC to staff, manage and maintain the voting certification process and Internet site resource.
I’ll probably get shot down by El Supremos claiming this is a “poll tax”, but I would certainly never call it that. *g*
Mary suggested earlier today that Sunstein might be one of Obama’s “picks”.
Where do you imagine Cass (there is only one proper “history”, the official one … and we should prosecute them what start contrary “rumors” regarding that sacred history) Sunstein might come down on this?
So many corporate centralists (all neoliberal, self-selected elites) to choose from. How about that poor woman the progressives defeated up there in Moosachusetts? Oh? right, the Republicans don’t like her … nevermind. Barack will find somebody. He really should ask John Yoo, what more fitting gesture of bipartisanship could our come buy ya President make?
DW
May I ask , what effect will this ruling potentially have over someone wishing to curb freedom of expression on the Internet?
Does anyone recall some of the remrks attributed to Sunnstein about infiltrating blog site and such? Greenwald did a piece last week in Salon about it.
Any input?
DW, is this ESP or what?
We asked basically the same thing virtually at the same time.
t r u t h o u tSupreme Court Shreds Campaign-Finance Laws, Lifts Corporate Spending Restrictions. by: Sam Ferguson, Jason Leopold and Kyle Berlin, t r u t h o u t | Report …
http://www.truthout.org/ – 21 minutes ago – Similar
Excellent piece .
Ah, Gitcheegumee, you and I are very often on the same wavelength.
I thought that the first time I saw your comments. Annoying bmaz they were, and you, dear lady, were right.
And truly classy in your responses.
You are one of the big hitters here, along with Hugh, Mary, EOH, phred, bmaz etc.
I’ve not been commenting much for a couple of months but I’ve been reading and appreciating.
And I do appreciate your “company” your insights, your courage, and the fact that you take no shit, more than words may convey.
DW
Our « ideal check and balances » system is quite flawed and has been showing its limits lately.
Aside from the obvious lack of ethics, the biggest problem I see is that it means that corporations that are public may very well spend shareholders’ cash on political campaigns for congress and president. So from now on, shareholders may end up contributing to political activities they don’t endorse despite their will.
MadDog, I left this link over at EW’s for you, too. Pretty hot for the old Grey Lady (the NYT, not yours truly–heh heh).
This would work.
My preferred option is for a constitutional amendment putting paid to this nonsense that a corporation is a person and/or stating that no corporation may give, lend, promise or guarantor funds for political activities unless their sole business is fundraising for political activities.
((((((((BLUSH))))))
For once, I am speechless….
Savor it all, Gitcheegumee. Well-deserved!
This doesn’t go far enough IMO. There’s the issue of national security at stake here. Foreign interests can now influence our political system to the point of controlling our government.
Foreign shareholders, etc. should not be allowed to vote and in addition, they count against the total shareholders. This would make it impossible for foreign controlled corporations to influence our political system.
That would be necessary for national security issues.
MadDog, you’re point is extremely well taken, but the legal fiction that underlies corporate law is far more complex than this. A corporation is an organizational entity that is OWNED by it’s shareholders. Each common shareholder is entitled to a pro rata share in the corporation’s net earnings, to vote in the election of directors, and that’s about it. Contrary to popular belief, a corporation’s owners do not own the corporation’s assets (which is why an Exxon shareholder can’t go into their headquarters and walk out with a computer saying “they own it”), nor do they have any legal standing to speak or act on behalf of the corporation.
The corporation, in turn, owns the assets that are represented on its balance sheet. The cornerstone of the legal fiction underlying corporate law and corporate finance is that the organizational entity known as a “corporation” is viewed as a “person” under the law which is seperate and distinct from the persons who own it. Corporations can sue and be sued, for example, but a person who has a grievance with a corporation cannot go after the assets of the corporations owners, which is the major underlying economic rationale for the existence of the limited liability corporation in the first place.
I’m afraid that the only way of dealing with this unspeakably bad decision is through the ammendment process. The Supreme Court can create a virtual volume of fairy tales out of the bizarre legal fiction that underlies the existence of corporations unless they are Consitutionally prohibited from doing so.
I should add that I’m not an attorney, but rather an economist who specializes in macroeconomics and financial markets and institutions. A corporate attorney might be able to discern some legal subtleties that I’ve overlooked, since I’m mainly interested in the aspects of the legal environment of business that relate to finance.
You forgot one thing. Well, actually, two.
1. All expenses relative to advertising (broadly defined, but particularly relative to governmental relations and issue/candidate advocacy) shall no longer be considered as expenses to be deducted from the corporation’s income.
2. All expenses relative to advertising (Similarly broadly defined), shall be taxed at, oh, 100 percent of their value. Or even 200 percent.
As to the former, I think we can say that’s a minor change to the tax code.
As to the latter, as David Stockman (of all people) was cited on this site the other day, the whole idea of tax cuts works two ways: if you want less of something, then tax it. Also, one needs to remember that for a long time there was a provision in the tax code which penalized corporations which retained profits (Rather than distriute them as dividends or invest them in new products/capabilities) by taxing them at a rate of 90 or 100 percent. The idea was to keep corporations from building up big piles of cash and instead forcingthem to put that money into circulation or to work.
So, there will/can be no consititutional problem with taxing the shit out of corporations. We’ve done it before.
Finally, I think there is no reason to subject unions to the same strictures as corporations. First, the opinion really dodged (insofar as possible) applying (giving) to labor unions the same standards for protecting First Amendment rights. I see this as Roberts* et als. setting up unions for a fall come the next case (probably one involving dues checkoff or something similar) when they can say “oh, we only meant the First Amendment to apply to corporations, not unions, because a union doesn’t have First Amendment rights, being an agglomeration of people with different views, while a corporation has a unitary management and therefore one view” or something.
-
* You should remember that Roberts is the son of an executive at the Bethlehem Steel Corporation and as such grew up steeped in anti-union sentiment. I won’t regale you with tales of how anti-union Beth Steel was (And how lockstep the ideology of its executives), but suffice it to say that the USWA got its (initial) reputation as a fighting (rather than a nice-nice) union because it was formed (in large part) by Beth Steel workers and its attitude was in response to the very predatory conduct of Beth Steel management. The CEO of Beth Steel once kicked his daughter out of the house (and, IIRC, disinherited her) because he heard she’d voted for Roosevelt. And, pre-union, it was not unheard of for men to have to offer the charms of their daughters or wives to the foreman so as to get or keep their job with the Steel.
You can see that mentality coming out of Roberts, if you know what to look for.
Did you already know about the bills that Alan Grayson introduced or was this a case of “great minds”?
See this morning’s Swim and Grayson’s House website and his Save Our Democracy website.
That is an excellent idea Scribe. except I’m afraid the corporations would argue that it’s an investmnet expenditure, or a cost of doing business like advertising. Either way, they’ll be able to deduct it from taxable income unless the tax is placed on political advertisements in general (a kind of excise tax). Which would be unconstutional.
We’ve got to get rid of the fiction that corporations are people. Maybe I was wrong about the ammendment process, but as long as they are treated as people under the law, there is no end to the fantasies that the Supreme Court can conjure regarding their “rights.?
Here’s one’s solution: In return for continued Limited Liability, the corporation surrenders its right to Free Speech and Political Contributions. With Free Speech comes Unlimited Liability. Unlimited liabilities owned by a limited liability entity, breach the limited liability entity’s liability protection.
Let’s see how quickly shareholders vote for management who want unlimited liability, with its unpleasant consequences, personal ruin for the shareholders.
I like this
Until the concept of limited liability is “honestly” examined, say about the time that corporate “personhood” is “examined” honestly, by some “power” that “is”, who (or which) is not beholden to the masters of the “universe”; your suggestion, Synoia, is superlative, as well as extremely “just”.
(True “Justice” in today’s America is an “extreme”, right on the face of it, being rare and, apparently unappreciated, generally, serving rather as a joke the elites may giggle about over champagne while toasting their obscene “bonuses” of both money AND power.)
DW
It’s possible but probable?
Can you give me some odds to work on?
Ironically, maybe he’ll appoint the Solicitor General Kagan (who argued the case).
He could nominate Turley who surprised me that he is in favor of the 5-4
decision…. but he ain’t a centrist corporatist (whatever that means) is he?
As you can tell the law baffles the shit out of me…
MadDog, good ideas all. One suggestion: The shareholder voting envelopes need to be hot pink!
O/T
Now that I have gained some semblance of composure, may I express a sincerest thank you for your very,very generous compliment upthread?
This is not constitutional.
This would work. Why should my contributions to candidates come from post-tax dollars while corporate expenditures can be deducted as the cost of doing business?
This would be an unconstitutional restriction of free speech that would not find support in mainstream campaign finance jurisprudence, from what I understand.
Note that I did not say “campaign advertising” or “issue advertising” exclusively. I said “All advertising”.
All, as in all. That means, that billboard – taxed. That radio ad – taxed. That newspaper ad – taxed. All of it. Regardless of content.
And, if you think that’s constitutionally impermissible, I’d remind you that guns, ammunition, hunting and fishng supplies (all of them, broadly defined) are subject to special federal excise taxes – in addition to normal sales taxes. And they have been since the thirties. That burdens a constitutional right, too, but no one suggests it’s unconstitutional.
FWIW, those excise taxes go toward habitat improvement and wildlife programs. I see no reason the advertising excise taxes could not go to – say – public financing of political campaigns. The advertising taxes would be a tax on commerce not speech (and thus plainly within Congress’ commerce powrs), and would be used to enhance speech, not limit it.
I would just like to point out that the ACLU wrote an amicus brief in support of Citizens United. If any of you are members, you should express your outrage.
They sent me a pre-paid envelope (for my membership renewal) and I used it to send a long letter explaining why I would never be a member again. I would encourage others to do the same.
@#38——maym
American Civil Liberties Union : Citizens United v. Federal …Aug 1, 2009 … The ACLU has consistently taken the position that section 203 is … and our amicus brief takes that position again. Legal Documents > Citizens United v. Federal Election Commission – ACLU Amicus Brief (7/29/2009) …
72.3.233.244/scotus/2009term/…/40556res20090801.html – Cached
Nonsense.
Your position seems to be that the more “wealth” a person has, the more “votes” they’re entitled to.
If so, it is your position that is unconstitional. You might want to read Reynolds v. Sims from 1964 where:
(My Bold)
Some confuse the laws of corporations where “wealth” determines who has the biggest say with the laws of political rights where “one person, one vote” prevails.
We are not talking about who rules the roost in a corporation, but instead 1st Amendment free speech rights in the political sphere.
There “wealth” is not relevant.
That is, until yesterday’s Supreme Court’s “Citizens United v. FEC” decision.
Unless I mistake your position, it seems that you, along with the Robert’s cabal on the Supreme Court, would have “wealth” be a factor, perhaps the ultimate determining factor, in making political decisions for the entire population of the country.
Tell me you don’t believe this.
Can we add that only US citizen shareholders can vote? No dual citizen shareholder votes?
You’ve got my vote! *g*
I have two different proposals. First, have Obama send legislation to Congress to expand the membership of the Court from 9 to 20. Then start sending liberal nominees by the boatload to the Senate and spare no effort to get them confirmed. Pack the Court, like FDR threatened. And then see how quickly the new precedent survives. For anyone who quails at that direct challenge to the Court, remember, they didn’t hesitate to choose W for President in 2000 in an audacious judicial coup against the People. Second, introduce an amendment in the House immediately to repeal corporate personhood through a constitutional amendment once and for all. The Court established corporate personhood through judicial fiat; it can be overturned by an amendment.
It works for me too, but I agree with bmaz, the Court will find this an unreasonable restraint on the free speech rights of corporations. Having said that, I think this proposal should be passed by Congress since it will really put a crimp in Corporate activities until the Court strikes it down.
I think there’s a game to be played here. The Court has over-reached in this case. It is a radical decision. A future Court will reverse it. Until then Congress must refuse to accept by passing a variety laws to undermine the intent of the decision. If this is done persistently corporate political activity will be stymied until the President can change the make-up of the Court to create the possibility of a reversal.
However, I don’t know how this can be done by the Democrats without Republican help, since these bills will all be subject to the filibuster. So, if Democrats intend to resist this decision through Congressional action, they will have to rid themselves of the filibuster, once and for all.
Actually, I’m not sure that there’s anything wrong with it. The Court claims that a collectivity of persons is a “person” with the right of free speech. The question then arises how will the collectivity of persons make decisions about what the content of that political speech ought to be.
The authority to speak for the corporation on non-political matters is clearly delegated by the shareholders to the Board and the CEO and so on down through the organizational hierarchy, so the decision making authority with respect to business matters is hierachical in character, but quasi-democratic at the stockholder level with voting weighted according to stock ownership.
But do stockholders in corporations, by virtue of their buying stock in it confer authority on others to represent them politically and to use an extension of their own right of free speech to speak in ways that may be contrary to their own political opinions and interests?
I don’t think anyone who buys into a corporation, or joins a union bargains for that. So, it seems to me it’s perfectly legitimate to require that there be an internal democratic political process of some sort in these collectives that aggregates the political opinions of individual members into the political views of the whole, before the CEO is given authority to express the content of those political views.
That’s a great formulation, scribe.
I like the Court packing idea, and have advocated that myself, but have proposed that 6 Justices be added making 15 Justices all told. i don’t know whether there is a right number, but I think it should be odd. Also, in addition to not hesitating to pull a coup in Bush v Gore, they haven’t hesitated to undermine democracy in this case. To me this Court is illegitmate; I would pack it in a nanosecond.
As for a Constitutional Amendment, I’m all for it, but remember it takes time to ratify it, and in that time, if the impact of the Court decision isn’t effectively countered through legislation, the people who are supposed to ratify it will have been bought by the corporations. No, I think we have only a few months to counter this, and we can’t let procedural customs in the Senate stand in the way.