We’re All State-Created Entities?

-->
Civil Rights, Supreme Court, The Constitution

Someone in a comment suggested that we non-libertarians are ignorant and we should educate ourselves by reading the Volokh Conspiracy, a well-known blog you’ve probably heard of. So I went over there to see what the brilliant Volokh Crew had to say about the recent Citizens United case regarding the free speech rights of corporations.

So here it is, and IMO the whole thing is a tortured exercise in stacking one straw man argument on top of another, beginning with the title, “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?”

One especially remarkable part of the argument (See subhead 3, Nearly Everyone and Everything is Probably a “State-Created Entity.”) says,

Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.

First, in theory, the government IS the people, and the House at least is supposed to BE the people, the citizens, sitting in representation, and when Congress votes to set up a program like Social Security, this is really the people through their government making something to improve the quality of their lives, not government “giving” them something. And in my mind setting up a government program to benefit people is not the same thing as conferring a “right.”

Anyway, as I understand it the argument boils down to this: if the status of citizen were taken away a person would still exist, and if the status of corporation were taken away a business would still exist. Therefore, a corporation is just like a citizen.

To which one commenter asked, “does my marriage have the right to free speech beyond the individual rights my wife and I possess?” Another asked, “Do you believe that corporations have a right to vote in state and federal elections?” (Which echoed something Justice Stevens said in his Citizens United dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”)

A corporation by definition is an entity separate and distinct from its members. The corporation as a corporation can do things like enter into contracts and pay taxes, and these obligations are separate from the personal obligations of the members. So when you are talking about a corporation doing something, you are not talking about its members acting through a corporation. You are saying the corporation itself is doing it.

As I understand it, the essential legal question underlying Citizens United is whether a corporation itself enjoy the status of “person” under the 14th Amendment? The question is not whether the individual members of a corporation may be deprived of free speech rights because they are acting through a corporation.

The crew at Volokh and Reason seem both to be ignoring this, and instead are saying that individuals are being deprived of their free speech rights because their use of a corporation for purposes of free speech is restricted. But that is not really the legal issue at the heart of the case. And, anyway, government makes all sorts of restrictions on means of communication, from licensing of broadcast bands to public nuisance laws that don’t let me blast my political opinions from a super-duper megaphone to my entire neighborhood 24/7. Not that I want to do that.

Another argument they are making is that if corporations can be “censored” in political campaigns, wouldn’t that overturn free speech cases involving media corporations, such as New York Times v. Sullivan? But the Sullivan case was not about government-imposed restrictions on the newspaper’s speech, but about the newspapers’ liability in a civil suit. And since the First Amendment specifically protects freedom of the press, seems to me the press itself enjoys a particular protection no matter who owns it. But again, that’s not the real issue.

The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.

Share
61 Comments

60 Comments

  1. felicity  •  Jan 23, 2010 @6:10 pm

    (Boy, that ‘stack of straw men’ is a mile high and onionskin-deep.)

    I said this on another blog but it’s worth repeating because it’s what we should all be discussing in critiquing the SC decision. In theory, theory and practice are the same thing, but in practice they’re not. The theory behind the recent ruling may be legally sound, may even in theory follow democratic principles, but in practice it will likely put the final nail in the coffin of American democracy.

  2. moonbat  •  Jan 23, 2010 @6:37 pm

    The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government.

    To me, that’s a real world issue, but not the central issue. What’s central is what are the legal distinctions between real persons versus artificial persons. And the rights/responsibilities of each.

    The founders’ documents assert that ours is a government for and by We, the People. By contrast, when corporations were invented, Kings routinely revoked their charters. And so in the former case – government answers to real persons. In the latter case, artifical persons answer to government.

    Sadly, in the chaos following the Civil War – a great example of Naomi Klein’s Shock Doctrine, corporations gained many rights that formerly were exclusively the purview of real persons, blurring this distinction. This is well documented in Thom Hartmann’s Unequal Protection: The Rise of Corporate Dominance and Theft of Human Rights.

    Volkoh’s assertion that everyone is a state created entity is ridiculous – my mom and dad created me, not the state. The state sanctioned the creation of XYZ Corp, it never would’ve happened without the state’s blessing.

    Earlier jurists understood these differences clearly, if not the great minds on the right, or in our nation’s highest court.

  3. Doug Hughes  •  Jan 23, 2010 @7:54 pm

    “The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. ”

    The answer is yes – we can restrict corporations. However, that was not the issue before the court. The court was being asked to rule on a First Amendment issue. Read the First Amendment -

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

    The law in question made distinctions between persons and corporations – but the First Amendment does not! The First Amendment doesn’t mention ‘persons’ or ‘people’ at all. The Constitution trumps all other law – period. The issue which the court decided has a flip side. The movie the law restricted was a hit job on Hillory, a planned swift-boating of the presumed democratic candidate for POTUS.

    This cuts both ways. It’s now legal for us to solicit corporate donations for the candidate I would most like to swiftboat – Palin. And groups who have been restricted in supporting candidates, like Planned Parenthood, CAN take the gloves off in promoting their view, something I would contribute to, and now corporations can kick it to support.

    Glenn Greenwaldt points out that no one would take seriously that a new law in North Korea will make that country more repressive. (It can’t get more repressive.) Likewise, this ruling can’t make an electoral process that’s totally corrupt – more corrupt. Glenn also points out that Democrats have collected more corporate donations over the last 5 years than Republicans. Ooooops.The K Street gang had no problem re-tooling with the change in parties, and the Democrats happily munch the same oats that fed the GOP.

    I will make a prediction that I have no way to test before 2010. Any party candidate that swears off corporate contributions – and denounces his opponent for being a corporate whore will sweep unless his opponent makes the same pledge. If you read my last 2 long-ass posts on the wild-card nature of elections due to the dominance of the independent voter, you understand where I am coming from. The only candidates who are working this dynamic, be it planned or accidental, are the teabaggers. The machine politicians of both parties are married to the K Street machine, certain in the belief that big contributions result in re-election. And they have tethered their election hopes to the Titanic – post iceberg.

  4. maha  •  Jan 23, 2010 @8:17 pm

    However, that was not the issue before the court. The court was being asked to rule on a First Amendment issue.

    Yes, Doug, I know that, and I believe I said the same thing later in the post. I was looking at a bigger issue than the legal one.

  5. jonerik  •  Jan 23, 2010 @10:16 pm

    Glenn Greenwald makes the point in his column on this that the dissenters in this decision did not argue with the premise of the majority that corporations have First Amendment “rights.” It might be helpful if we think about the actual phrasing of the First Amendment itself which says: “Congress shall pass [enact] no laws. . .” meaning that the limitation is on Congress. The 14th Amendment is the part of the Constitution which addresses “citizenship” in the “privileges and immunities” clause and “persons” in the “due process and equal protection” clause. Because the 14th Amendment is applicable only to States, the Court’s decision is not a decision on the “personhood” or “citizenship” of corporations or even of their “rights”. We have only come to speak of “rights” as a convention or shorthand to limitations on the power of government, as we speak of the “right to abortion” or “right to privacy” when it is really a Constitutional a limitation on the power of the State to encroach on certain areas reserved in the words of the Tenth Amendment, to “the people.”

    I agree with Maha’s take on the Volokh people and their libertarian friends. I think the question raised by the Court in this decision really raises the question of the means or the “how” of regulating corporations, or limited liability companies (a new device), limited partnerships, etc. It depends on how you pose the issue; if you ask, can Congress limit the right of anyone, be they an individual, a partner, a corporation or whatever, to spend whatever they want on a campaign?, then maybe the answer has to be no. But if you ask the question, does Congress have the right to enact a law which prohibits Bill McGuire, the CEO of United Health or any other CEO of a corporation,from spending a nickel of a corporation’s $$$ for a campaign contribution without a majority vote of the shareholders?, then the answer might very well be YES.

  6. Peg  •  Jan 23, 2010 @10:21 pm

    It was nice of you to post the link, Maha – even though I obviously wouldn’t agree with a lot of your description. I didn’t know if people here were familiar with the Volokh law blog or not.

    I have a question to ask of you and the people who post here. Why do you some of you always sound so angry about people who are not far left progressives? I myself am not far left – though I am pretty liberal on social issues.

    My friends range from pretty darn conservative to libertarian to mildly liberal to Saul Alinsky’s my best friend liberal. They’re all great people, even though I may disagree mightily with them on various topics.

    I like to read blogs like yours to see WHY people believe what they believe. I regret, however, that so many negative emotions seem to be directed at those who hold differing positions.

    Thanks in advance for answers.

  7. joel hanes  •  Jan 23, 2010 @10:51 pm

    After reading the Volokh stuff, I’m convinced that corporations actually have political rights. In fact, I’m now convinced that corporations have the right to vote (one vote per dollar of market capitalization), and further, have the right to hold political office. They’re persons, right? With all the rights of a person, but with that cool limited liability provided by the shelter of state law? What’s not to like?

    I look forward to voting for Odwalla Fruit Juices or the ACLU for Senator (in preference to the Repubulican nominees: the corporation formerly known as Blackwater, and Halliburton).

  8. Charles  •  Jan 23, 2010 @11:20 pm

    I’m familiar with the Volokh Conspiracy blog, and I’ve read Glen Greenwald’s posts on the subject. Anyone familiar with mathematical logic who looks at the laws of these United States will find it obvious that the laws are internally inconsistent. Also, they contradict the basic principles laid out in the Constitution itself: allowing absolute free speech clearly conflicts with “promote the general Welfare”. Allowing corporations the rights of people is clearly and obviously not going to “secure the blessings of liberty to ourselves and our posterity”.

    That different people choose to resolve the contradictions differently, picking one law over another is hardly surprising. That the current SCOTUS, packed with corporate-friendly justices, comes down on the side of those who control the corporations is even less surprising.

  9. maha  •  Jan 23, 2010 @11:46 pm

    Why do you some of you always sound so angry about people who are not far left progressives?

    First, nobody here is “far left.” If you think this is “far left” you have led a sheltered life.

    Second, if we sound angry it’s because we love America and we hate what’s being done to it.

  10. Peg  •  Jan 24, 2010 @1:05 am

    “Nobody here is ‘far left’” – but you refer me to an article that says the U.S. is now fascist, and gives advice that people should move away to one of the many other superior nations out there “before it’s too late” – whatever that means.

    Sorry to disturb everyone. Go back to your mainstream thinking – and I will slink back to my own personal fascist world.

    Seriously; I intended not to get sarcastic, and I did. But conversation is futile – so, I won’t bother anyone here anymore.

  11. Swami  •  Jan 24, 2010 @1:38 am

    I have a question to ask of you and the people who post here. Why do you some of you always sound so angry about people who are not far left progressives?

    Peg…Although you pose this as a question,I’m seeing it as a statement. The reason being is that you used the word”always” in your question and that my training in constructive dialog has taught me to identify that word as a roadblock to honest and effective communication. Whether by habit or design it sets up an untrue parameter that forces the respondent in the dialog to either dismiss it if they can recognize it as untrue, or come back with hostility to overcome the false parameters you’ve enclosed them in.

  12. biggerbox  •  Jan 24, 2010 @3:17 am

    Suggesting that citizens are the construct of the state is to turn John Locke upside down and shake him until his teeth fall out.

    Locke fan-boy Jefferson and his pals would be disappointed to hear that, despite their professed confidence, the truths that rights are endowed to men by their Creator, and that to secure these rights we institute Governments, which derive their powers from our consent, are not, at least to some, self-evident.

    But of course, the author of the argument probably doesn’t actually believe it, since it appears mainly to be the pretext for raising the specter that if individuals are ALSO state-created entities, then they too are in danger of being deprived of free speech. But fear not, since we know that individuals ARE protected by the First Amendment, voila, state-created entities must be too! Nice try, but no sale. States are citizen-created entities, not the other way around.

    And while I admire the creativity in the argument that the First Amendment doesn’t mention “persons” or “the people” at all, I can’t help but notice the 31st and 32nd words in it. And, while trumpeting the Constitution’s supremacy, let’s not forget the first three words of that Constitution, shall we- We, the people. The entire First Amendment is in the context of what we, as people, choose for how our Government is allowed to operate.

    And, since the modern concept of a corporation as a thing that could have rights at all didn’t even exist at the time of its writing, the fact that the First Amendment drew no distinction between people and corporations carries no weight with me. I notice it also makes no distinction between people and cell phones, or marine algae for that matter, but that is no reason to assume it means my phone or a piece of seaweed has a right of free speech. The metaphor of a corporation that could have independent agency at all, much less natural rights, was a legal contrivance adopted later for the purposes of simplifying contracts and limiting liability in industrialized commerce. It’s nonsensical in the world-view of the Framers – and ghastly.

    Oh, and separately for Peg – you may have left permanently, but if not, I’d like you to direct me to some conservative blogs where my opinions and people I respect would be met without anger and insult orders of magnitude worse than you’ve seen here, if not threats of violence. Not that two wrongs make a right, but I find it hard to believe you find the tame moderation of commenter here to be unbearably angry. If so, you need to get out more, babe.

    You may complain about anger, but consider this – For most of the last decade, me and mine have been called terrorists and America-haters and worse, by the President and his staff! And that’s before what Rush and Beck and the right-wing blogs I’ve read say that is worse. I’m a patient man, but call me vicious names for that long, while simultaneously destroying the traditions and honor of the country I hold dear, and I get touchy. So sue me.

  13. c u n d gulag  •  Jan 24, 2010 @8:42 am

    Peg,
    How can I miss you if I barely know you? You seem very bright, stick around and share.
    And if we seem a bit testy, I’m with biggerbox on this one, it’s because of the way we (and by “we”, I mean those of us who were not ‘lock-stop lemmings,’ and who were proved right about many, if not most, things) were treated for 8+ years. And not just when I first tried to post on right-wing sites, but by the President and his VP, Dick Rottweiler, I seem to recall being called a Communist (hardly), a traitor (for what, disagreeing with King George IVth?), an idiot, a socialist, and a heathen (ok, they may have had a point on the last three, but they said them in a hurtful way), among other things.
    I was, and still am, very, worried about the direction our country is going in, hence my nom de plume – ‘c u n d gulag,’ because that’s where members of my parents family’s ended up in the past century in another country that took a turn to the dark side.
    I will say this, though, about your quote, “Go back to your mainstream thinking – and I will slink back to my own personal fascist world.”
    THAT’S TEH (sic) worst thing I’ve EVER been called – Mainstream! Mainstream? MAINSTREAM!?!?!?!?!?
    Take it back, Peg! Come back! Please take it back, Damn You!!!!!!!!!!!

  14. Peg  •  Jan 24, 2010 @11:05 am

    OK – I did some back to see what else came up :)

    To Swami: please note that I did not say EVERYONE here ALWAYS sounds angry. I said that SOME do. I stand by that statement as being accurate: SOME do sound continually enraged and angry… and yes, as a few have mentioned, just as SOME on the right are, too.

    Personally, I find that kind of an attitude very counter productive. I cannot STAND Ann Coulter – even though on some topics, I agree with her arguments and conclusions. She’s rude, insulting – and often makes statements so inflammatory, the rest of what she’s saying is drowned out.

    No one feels like having a discussion after they’ve been called a host of disgusting names; why should they? Yes, I agree it happens on the right and the left.

    I think it is tough to find blogs where there are NO “angry, insulting” comments – unless it’s a spot where they censor loads of the comments (and if it’s a good and popular blog, they probably don’t have the time to do that.) So – I go more by both the tone of the original posts, their accuracy, their willingness to CORRECT when they’ve either made a factual error or a “tone” error … and then if they have SOME decent people making comments.

    Hot Air is a blog I like for original posts – although I would admit that some of the commenters are not good. I also do like the Volokh blog, as I mentioned earlier. I like that they have a wide variety of law profs who are knowledgeable, occasionally some guest bloggers, etc. A guy who is from my area, U of MN, often writes about gay marriage – very “pro-gay marriage” – as some conservatives and libertarians are.

    Finally – I might add: don’t judge everyone in a group by what a small extreme group does and says. I do not judge President Obama or the Secretary of State by what some commenter on a very liberal blog says. I don’t judge GWB or any other Republicans or conservatives by signs that a few extremists might hold up.

    I DO judge parties and positions overall by what their leaders say and do … but they cannot be responsible for everyone everywhere.

  15. c u n d gulag  •  Jan 24, 2010 @11:29 am

    Peg,
    Thanks for coming back. I hope you continue to do so. You have a lot to say, and you say it well. I may not agree with you, but you say it well.
    But, you didn’t take back the “MAINSTREAM” line. Please, I beg you, take it back. Because if the people here were truly the “mainstream,” we’d be a far different country. Or, so I think, anyway…
    Please, please, please, take it back. Or, am I really “mainstream?” Who knew?

  16. Doug Hughes  •  Jan 24, 2010 @12:10 pm

    Peg -

    There’s a bumper sticker from the Bush era that reads -

    “If you’re not angry, you’re not paying attention!”

    That’s why we sometimes sound angry here. We ARE paying attention to Obama, to Congress, global events, national events and pretty consistently, to the People. We hear from groups who blindly cling to the concept that the oppressive power of government must always be opposed.

    At the time the Constitution was framed, there were but two major oppressors in recorded history – Government & Religion, so the founding fathers excluded any state religion or cohersive support of religion and the framers tried to tie the power of a secular government to the popular will of the people.

    A few centuries later, mankind has invented a new oppressor, big business, whose power to control and destroy lives is exceeded in all human history only by plague and unlimited global warfare. (I am not in denial of the power of business to advance the interests of mankind – I’m addressing those aspects that trample the poor and ruin the environment.)

    I see only TWO forces capable of checking the destructive aspects of the multinationals. The first is a strong federal government, working in concert with other democratic govenments. The second force that could collapse the strength of the multinationals is the total collapse of modern civilization.

    I am angry because I see the second option more likely than the first.

    To believe that the multinationals can be managed by the competitive force of the free market or the power of state governments is to live in a dream world. I believe in a Creator, but my belief system does not include the expectation that we will be saved by Divine Intervention.

    It may be unfair for me to formulate an opinion based on a single post, Peg, but I don’t think you are paying attention. Don’t take my criticism personally – you have so much company it’s tragic, and the tragedy is – the abyss is looming.

  17. Peg  •  Jan 24, 2010 @12:26 pm

    Cundagulag – not to worry about “mainstream.” I was being very facetious (I’m afraid it is a congenital disease of mine). And thank you for the nice invitation. I am a big believer that the only way we are going to get any progress in our nation is for people who have very different opinions and viewpoints to stop hating one another! I may disagree quite strongly with what a lot of what people here believe. And – I don’t really know any of you personally, obviously. Yet, my guess is that as is the case with any large group of people, some are lovely and some are not – etc., etc. Bottom line is that IF you are writing here, you are thinking and concerned about our country and our people. I appreciate that.

    Just do remember that people who think as I do (pretty much a small government, fiscal conservative, quite socially liberal viewpoint) also have the same goals: success for our nation and our people.

    Government AND business are all made up of people – whether it’s local government in a small town or the federal government – whether it’s some mom and pop business or a corporation with subsidiaries around the world. And – ALL of them are no better or worse than the organization of that group – and its people. I do not view government OR business as inherently good or evil.

    The one critical difference between the two, however, is that government is more controlled by bureaucracy – by definition. Business usually has more flexibility. And, people have more of an ability to choose what business they wish to use – or ignore – but not their government; at least, not short term.

    That is why I do believe in small government. I prefer to have more personal choice left up to people as to how to live their lives.

    In any case – my original point is more that I think it’s helpful for all of us – irrespective of our political beliefs – to appreciate that those who don’t share all of our same positions are not necessarily terrible or evil or selfish or stupid or any of those negative adjectives.

  18. c u n d gulag  •  Jan 24, 2010 @1:39 pm

    Peg,
    Welcome back :-)
    I, too, believe in smaller government. I just believe that what money we do spend ought to be on people and improving their lives, not arming ourselves, our allies, and even our enemies (where, eventually, do we think all those weapons go to, anyway?). We spend more in one year on our “defense” than ALL of the other nations combined. And yet, for all the stupid expenditures, less than two dozen men with box-cutters brought our nation to a standstill. Did we rethink our priorities? Hell no! We attacked everything we could, gave more money to contractors, and even privatized our military to a large degree, further expanding our expenditures. For expample, my dad had to do KP duty once in awhile. What’s cheaper? A private making your lunch, for just a bit above minimum wage, or some poor shlub from a 3rd world nation who gets $2 per hour out of the $30 per hour we pay the contractor. THAT’S what pisses me off.
    I believe that the single greatest thing our government could do right now, this minute, to give a kick start to small businesses and the economy is to pass a real health care program. Imagine how it would free people up to try something, instead of hanging on to a job they hate, just because it offers benefits.
    Spend money on health, on education, and on a greener energy system, and watch our economy boom. Instead, we spend it defending ourselves from a dead “empire, the USSR, and a non-existant military threat from a growing empire, China. By not spending money on health, education, and energy independence, we are literally handing the future to China.

  19. Charles  •  Jan 24, 2010 @1:53 pm

    Peg,

    Please. What evidence, other than your unquestioning faith, do you have to prove that “business has more flexibility than bureaucracy”? Speaking as a person with 40 years of experience in business, government, and academics, I’ve never seen any evidence for that proposition.

    As a counter-example, let me point out that, when the big financial institutions got themselves (and all the rest of us) in a big bind, they turned to government to bail them out. If they were so flexible, why were they unable to do it?

    Ordered amalgamations of people, whether government or business, are expressions of the common wills and desires of those people. In the case of the corporations, this will is to make money, but practically this is done by management, which results in the corporation being run (not infrequently into the ground: see Enron, Northwest Airlines, GM) for the benefit of management.

    Bureaucracy may result in the same end (see: FBI under Hoover), but, since the people get to vote on who exercises control, ultimately, it tends to get corrected before the stockholders lose their shirts. As a shareholder in quite a few corporations, I laugh at the solicitations I get from management to vote on the various slates and propositions they put forth, knowing that the chance of my vote making any difference is far less than the chance that my vote will make a difference in a state, local, or even national, election.

    As a Minnesotan, you have seen, first-hand, the effects of a few voters on an election. When did you ever see a close result in a corporate vote?

  20. maha  •  Jan 24, 2010 @2:45 pm

    The one critical difference between the two, however, is that government is more controlled by bureaucracy – by definition. Business usually has more flexibility. And, people have more of an ability to choose what business they wish to use – or ignore – but not their government; at least, not short term.

    Your premise is based entirely on faith alone, not on verifiable empirical evidence. Anyone who has ever worked for a major corporation (and I’ve worked for several), especially in the production or manufacturing departments, knows how badly and wastefully managed many of them are. So often upper management comes up the ranks from marketing and finance, and they have no idea how the stuff they sell actually gets made. And then they make stupid organizational decisions that hobble research, engineering, production, etc. I’ve seen it over and over and over.

    And then, of course, you’ve got failures like Enron and Lehman Brothers, in which a small number of people at the top made really bad decisions and took the whole company over a cliff. This is not “flexibility.” Not at all. This is greed and hubris and power. And a great many good people were damaged because of it.

    And the tendency in unregulated capitalism is for there to be bigger and bigger, but fewer and fewer, players in any given market, and really big organizations are rarely all that flexible.

    On the other hand, most government agencies have a well-defined, dedicated purpose, and with proper management they can get pretty good at delivering their objectives efficiently. They don’t need “flexibility” as much as they need professional managers and low turnover to maintain what’s called “institutional memory.” On the other hand, when professionals are run off and replaced by political appointees with no qualifications for their jobs, any agency can go the way of FEMA under Bush and Brownie.

    But the fairy-tale belief that private enterprise is always, somehow, better at doing things than government is just. not. born. out. by. real. world. experience. There are some things private enterprise does better than government, and some things government does better than private enterprise, and if you ever take the ideological blinkers off your eyes you might see what those are.

    Believe it or not, I think I speak for most of us here when I say I’d like to keep government as small as practicable, and I’d like to keep taxes as low as practicable. It’s a myth among wingnuts that liberals like high taxes and big government for the sake of high taxes and big government. The difference is that we disagree on what is “practicable.” People really need government to do certain things. And I have this crazy idea that if We, the People want government to do something, like go to war, then taxes have to be raised to pay for it. Conservatives seem to think we can just keep borrowing money from China and someday the good budget fairy will wave her wand and make everything all right.

    However, no amount of domestic spending pleases a conservative, even though history shows us that investing in the American people is great for the economy. Do some research on the long-term effects of the post-World War II G.I. Bill, for example.

    In any case – my original point is more that I think it’s helpful for all of us – irrespective of our political beliefs – to appreciate that those who don’t share all of our same positions are not necessarily terrible or evil or selfish or stupid or any of those negative adjectives.

    One, many on the Right wish all of us dead. They express this wish frequently. Yes, we’re snarky over here, but pound for pound I’d say righties are ten times more hateful than we are. Two, most of what passes for conservative theory these days is absolutely insane. The Republican Party is no longer serious about governing at all.

    Believe it or not, I’m happy to talk to anybody about smaller government and lower taxes when their ideas are based on real-world understanding of how stuff really works instead of fairy-tale theories and partisan talking points. So if you ever run into anyone like that, chase ‘em over here. I promise we’ll be nice.

  21. Peg  •  Jan 24, 2010 @2:55 pm

    Cundulag – see; we agree on some things! I don’t think ANYONE seriously likes to spend money on killing people and war rather than “positive” kinds of activities. But, there are times when there is no recourse. All the money on schools and jobs and parks and roads and all the rest of it are irrelevant if some terrorists figure out a way to bomb one of our cities or poison our water supply and kill a few million at a crack. Now – that being said, it surely doesn’t follow that ALL military actions and wars and all the rest are justified. I’m only saying that sometimes, it’s something we have to do. Devil in the details – eh? I personally feel way too ignorant and unknowledgeable myself to make firm decisions when it is or isn’t right.

    I also wholly agree that we need some strong reform when it comes to health care. My problem is simply that I think what Congress has put together is all the wrong sort of reform. I much prefer a proposal like the one that the CEO of Whole Foods wanted: something that is market based, that would allow for true competition in the marketplace, the ability for people to keep their insurance, even if they become very ill, and some mechanism for those who are truly too impoverished to be able to obtain decent health care. I really DO wish that Obama had been able to follow through with his campaign promise of “We’ll put the discussions on C-span for everyone to see.” If we’d had more transparency in the process, I think a much superior bill could have been put together.

    To Charles, my statement above was not some apology for big business. I think a lot of what is being done today in big business is terribly broken. I agree with those who say that the guys on top are being compensated in utterly ridiculous ways, and that it harms the rest of our society. I agree that it is crazy that taxpayers should have to bail out big businesses because their management screwed up.

    My cure, however, is different. Let the companies and their management and their shareholders suffer when they choose poorly: “risk and reward” – or failure, if the risk is poor. We ultimately do not do our country a service when we tell people they can take lots of risk and reap rewards – irrespective of how their actions come out.

    Definitely there are a myriad of responsibilities that can lie only within our government. But also, no individual company ever begins to approximate the size and power of our government – and its inability to nimbly maneuver. That’s why we should try to keep the government as lean as possible, and allow individuals to experiment with what works and what doesn’t. If they get it right: great! If they don’t – let them suffer the consequences. And, IF we have things this way, people will be far more careful about making poor choices. If someone is going to save them, come what may, they have far less motivation to be careful.

  22. Kelly  •  Jan 24, 2010 @3:24 pm

    Maha,

    I’ve been reading you a few days a week for a while now and I’m inspired to comment by your statement that the left and right disagree on how much government is practicable. It clarifies something I’ve been fumbling for when I cuss and discuss politics with my conservative friends and neighbors. I’ll add that the we do not pile our tax money up and burn it. We buy and build stuff. Money buried in a treasure chest is far less useful than money moving around.

    We are the government regardless of which party runs things.

    I’m hoping the corporate contributions won’t change cam(pains) very much. For many election cycles corporations have laundered there contributions through the staggering executive pay packages. Unless they can expense direct contributions as favorably as payroll the money may stay in that channel.

  23. maha  •  Jan 24, 2010 @4:03 pm

    I much prefer a proposal like the one that the CEO of Whole Foods wanted: something that is market based, that would allow for true competition in the marketplace,

    Health care reform is one of my primary topics, and I have written mountains of posts on why a market-driven approach won’t work. (I’ll find some links later, when my computer decides to speed up.) The basic fact is that there is no place on Planet Earth in which a “makret-driven” process is delivering 21st century health care to anyone but the wealthy. The private health insurance business model, even if it weren’t so damn corrupt as it is now, is inadequate for delivering 21st-century health care to an entire population.

    Allowing individuals to experiment with what works and what doesn’t — bottom line, if there were a private-enterprise solution to our health care crisis, private enterprise would have found it by now. Ain’t nobody stopping them. Their complaints about government regulation and programs interfering with private enterprise are baloney, because most government programs and regulations were created in response to private enterprise dropping the ball and failing to serve the needs of people.

    If Medicare and Medicaid and SCHIP and other programs disappeared tomorrow, do you seriously think CIGNA executives would dance for joy and run out to get the business of the old and poor? Um, no. And if the awful state regulations here in New York that conservatives complain about evaporated tomorrow, the effect would be that my insurance company would either dump my policy outright or price me out of the market, considering that I’m 58 and have high cholesterol.

    The so-called “tort crisis” is a red herring, since the actual costs of malpractice and the number of suits filed have dropped dramatically in recent years in several states and it hasn’t done a dadblamed thing to reduce or even slow down the rate of increase of health care costs. The propagandists will tell you that it has too reduced health care cost because medical malpractice liability insurance goes down, which is a nice plus for doctors, but (1) these savings are not passed on to the health-care consumer and don’t even put a dent in the overall cost of health care; and (2) most fluctuations in the cost of medical liability insurance come about because of fluctuations in the stock market, not overuse of the tort system.

    Now, I’m all for giving private enterprise a chance to come up with solutions, but it’s past time that it should be obvious even to a tree stump that private enterprise can’t solve our health care crisis. This issue has been debated since the Franklin Roosevelt administration. And for all these years, while the rest of the world went to various national health-care plans that are far more cost-effective than ours, the U.S. sat around and waited for private enterprise to step up and meet the needs of the American people. Private enterprise didn’t step up.

    So how many more years do you want to give them to do what they continue to fail to do? How many more dead can you tolerate in the name of “small government”? How many more bankruptcies? Do tell me — give me a figure. I really want to know.

  24. freD  •  Jan 24, 2010 @4:46 pm

    Peg said: I DO judge parties and positions overall by what their leaders say and do … but they cannot be responsible for everyone everywhere.

    So do I… and obviously. I judge parties and positions by overall ‘team batting average’ – hits being determined by my perception of their intelligence, integrity, qualifications, and positive impact for the whole of this nation. But since my time can be limited and filtering truth from spin can be difficult, I will simplify. One way I “judge parties” is to note who is most popular within each “team”, based on book sales, TV contracts, votes etc. Example: For the right, it appears to me that Limbaugh, Palin, GWBush, Ayn Rand, Beck and Malkin are far more popular than Rockwell, Paul, Sowell, Buckley, Goldwater and Jesus Christ (since his words are rarely mentioned as inspirations or linked to as sources). Then I ask myself: “Who would I rather have as a neighbor”?

    Peg said: small government, fiscal conservative, quite socially liberal viewpoint) also have the same goals: success for our nation and our people.

    In other words, less taxes, less legalized interference with your stuff, and mind your own business. Aren’t most people are this way? But most people also don’t like long term unemployment, losing children to some societal dysfunction, or burning to death, either. Therefore (what should be) honest debates.

    Peg said: people have more of an ability to choose what business they wish to use – or ignore – but not their government; at least, not short term.

    Ideally. But the reality is that I’m stuck with either Comcast or crappy phone internet, but can leverage my own ideas which inspires other ideas which impacts government, on the crappy but expensive internet service Comcast provides me. I find it far easier to impact our democratic republican government than I’ve had getting Comcast to deliver the bandwidth they promised me.

    Maha said: Anyone who has ever worked for a major corporation (and I’ve worked for several), especially in the production or manufacturing departments, knows how badly and wastefully managed many of them are.
    My experience exactly. Over 30 years I’ve seen that it’s much harder to be an honest brilliant workaholic (not necessarily myself but many others I’ve observed) than a politically astute and well-connected player. Many Babe Ruth’s toil in oblivion while Huey Long gets the big contracts. The system is based overall naïvitee to the extent of this problem. Since I don’t see modern conservatism addressing this issue much at all, it (unwittingly) espouses the perceptual while demeaning the real – the opposite of what it says it stands for. The only rational reason I can see for this is that ruthlessly pragmatic plutocrats, who understand well that “The mob is America”, are as adept at cultivating cultures of ideology and nitpicky politics (No, MSM made our heroic righie look bad. But Look! Lefty struck out again!!) as Commodus was at his bread and circuses. Some Democrats, but usually those from conservative districts, behave this way as well.

  25. freD  •  Jan 24, 2010 @4:54 pm

    Of course, there have been grand slam homers from Republicans. Did Eisenhower know that his interstate highway system would spin off so many businesses, so much economy? I strongly doubt that common wingnuts could tell the difference between “an economic gift that keeps on giving” and a Bushian quagmire, even in retrospect.

  26. Charles  •  Jan 24, 2010 @5:04 pm

    Peg,

    Oh, I’m sure we all agree that private enterprise is a wonderful thing, and a powerful force for good in the world. I’m old enough that I remember the gruesome days before it brought us underarm deodorant, and I also remember back when that other brilliant success of private enterprise, the cigarette, was on the tip of everyone’s tongue.

    Yes, the power of the federal government — in the USA, but not, please note, in, say, Nauru — is greater than that of even the largest corporations, with the possible exceptions of J. P. Morgan and Goldman-Sachs. But the Constitution of the USA limits the ability of the federal government to interfere in the lives of the people (at least of US citizens, and at least if the Constitution is actually enforced, both “nuanced” under recent administrations, to say the least).

    What prevents a large corporation from victimizing you? If your answer is your threat to take your business elsewhere, and your influence over others to do so, please imagine my tiny laughter added to the guffaws of that large corporation.

    Oh, and by the way, the number of executives who have run companies into the ground and yet ended up their careers rich, fat and happy is beyond count. This is one of the symptoms of the end-game in unregulated capitalism. You are free to name a few ex-CEO’s who ran their businesses into the ground and ended up destitute, or at least middle-class.

  27. c u n d gulag  •  Jan 24, 2010 @5:38 pm

    Peg,
    I’m with maha on this one. Our model for health care is a disaster – unless you’re an executive at that company. They’ve had dozens of years to improve and the only thing they’ve shown they can do, is fatten their own wallets at the expnse of millions of people. Some still alive. Some dead for years.
    Let me tell everyone why government doesn’t seem to work anymore – because we’ve “privatized” way too much of what at one point worked pretty well. And Saint Ronnie and the conservatives are to blame. And we now pay MORE for the same services, which are delivered much LESS efficiently!
    Economically, give me back the country I grew up in, in the ’60′s and ’70′s, but with some of the rights we’ve gained as individuals (women, minorities, homosexuals), and I’d be a happy camper.
    To me, this country looks like a once vibrant western mining town, now devolving into a ‘ghost town.’ Once the rich leeches mine all of the gold, we’ll truly be a ghost town. Expect many of us will still be alive – if only barely.
    Me? I’d rather trust government, because, at least in theory, up unitl the SCOTUS decision this week, I could vote the weasels out.
    How do I fire that rich idiot at Goldman?
    How do I make a millionaire health care exec feel the pain that people have as their teeth rot, their friends and relatives slowly die, going broke in the process?
    Coolidge’s line, “that the business of Ameica is business,” came right at the end of the first Gilded Age, before the bust that eventually equalized this country due to the growth of unions, and the spreading of wealth due to a progressive tax.
    We are now in the 2nd Gilded Age, where money gives you a voice.
    To paraphrase the great Harlan Ellison, ‘I have no voice, and I must scream!’

  28. Ohio Mom  •  Jan 24, 2010 @6:36 pm

    Peg, I can’t help but think that if you were really for small goverment and fiscal conservatism, you’d be a Democrat, if only in absolute disgust and revolt at how much debt Regan and Bush ran up.

    You’d swear to yourself, “I’m never voting for another Republican, look what those two did to this country’s finances, and neither one of them did a thing to make government any smaller. On the other hand, that Clinton fellow really started making a dent in the debt. More like him, please!”

    You’d be shaking your head, thinking,” Isn’t that ironic? The party that everyone says is for fiscal responsibility is the one that’s actually less fiscally responsibility. Guess it’s true, you can’t believe everything you hear.”

  29. Peg  •  Jan 24, 2010 @7:08 pm

    Well – I never came here with the intention of changing people’s minds from the perspective you hold to that of Rand followers or staunch Republican voters. And, if you note, I don’t think I said much that was laudatory about Republicans. As some of you said – they haven’t exactly been the party of fiscal responsibility or small government, either.

    I primarily stopped by to see how people were responding to the election of Scott Brown, and what direction they thought Democrats should take.

    Like I said; I have friends of all political stripes. I do not judge them as good or bad people based upon what health care plan they think is most likely to work.

    Truly, the only thing I would urge is that people try to have a bit more sympathy for people who don’t share your views, and don’t think of them in such derogatory terms. Don’t change any of your positions, if you continue to think that they’re correct. At the same time, don’t think that at any given moment that 40% to 60% of the population is ludicrous.

    I urge the same of my conservative friends who think ill of you. It’s wrong – and destructive.

    Thanks for your time and letting me stop by.

  30. maha  •  Jan 24, 2010 @7:38 pm

    Truly, the only thing I would urge is that people try to have a bit more sympathy for people who don’t share your views

    Peg, I’ve been writing this blog since 2002, and I was active on internet politics forums going back to before there was a Web. I used to try to have respectful conversations with conservatives. I gave up. Most of them are bullies and brutes incapable of independent thought. I’ve been verbally brutalized by righties more times than I want to think about. This includes getting threatening phone calls for daring to disagree with a prominent right-wing blogger a few years ago.

    I have sympathy and respect for anyone who shows a spark of being able to think for himself, even if I disagree with him. But with most righties all you ever get are the standard talking points, drilled into their heads by right-wing media, and which we’ve all heard over and over and over and over and over. That includes everything you’ve said so far; not a single original idea or the least indication you’ve ever thought about anything for yourself. You just repeat what you’ve heard.

    I find it striking that you have nothing whatsoever to say about the Volokh Conspiracy post and our criticism of it; you just complain that we’re not nice enough about it. Yet there is a log of thinking going on here, and people expressing concrete ideas. Agree or disagree? Are you able to understand what we’re talking about?

  31. c u n d gulag  •  Jan 24, 2010 @8:26 pm

    Can’t we all just get along?
    Sadly, we can’t.
    ‘Talking points’ preclude listening. Is that true for both sides? Yes. It’s just that on the right, ‘talking points’ are all there is. Please give me ONE example of some new idea by conservatives in the last 30 years. And don’t say torture, and other things that Bush did. Those were not new. Just evil turds polished-up by fear and patriotism to fool the rubes…
    And now that the rubes realize that the turd was just a turd, they want to blame the people who inherited it, instead of the ones who shat it.
    America is a stupid country. As Palast called it, ‘an armed madhouse.’ Whatever bad shit is coming down the pike, I think we’ll find that we deserved it.
    I have, and will continue, to work to correct the course that we seem to be heading for. I just don’t see that the ignorance in the population will lend itself to anything progressive. The Republicans have opened up the Pandor’s Box of fear and hate. Sadly, they’re not lending a hand in trying to help this country. Like the Satan that they claim to hate, ‘they’d rather rule in Hell, than serve in Heaven.’
    I’m going to bed soon. Good night, and good luck…
    See you all tomorrow.

  32. Peg  •  Jan 24, 2010 @8:30 pm

    Maha – I realize you may think I’m just one more very stupid libertarian/conservative “Are you able to understand what we’re talking about?” – but I assure you that I have sufficient intelligence to participate in a fair amount of argumentation.

    I mostly did not respond to the points above about Volokh because I thought either they so misrepresented Volokh’s point, or were so incorrect, I wasn’t quite sure where at all to start.

    BUT – since you ask – I’ll address the last point in your post: “The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.”

    Sorry; I do not think that this is the “real issue” at all. The “real issue” is whether people’s first amendment rights to free speech are being compromised. Five of the justices agreed that they were compromised by this law. Whether corporate cash is “destabling” or “corrupting” or any other number of bad qualities is beside the fact. They might MATTER greatly – but – they aren’t relevant. What is relevant is whether or not speech, particularly political speech, is being stopped by the government.

    If you and enough others think that the reasons you pose above are important enough to amend our Constitution and the first amendment (as some have stated) – then go ahead and fight for it. Your arguments, however, are not what the Court was trying to decide. They were not trying to decide whether or not these campaign finance laws were for our own good or would lead to better elections. They were trying to determine whether or not they were constitutional.

    As much as I admire and like BOTH Senators McCain and Feingold – I thought that their law was awful, unconstitutional – and am glad that for the moment, it can no longer squelch the rights of common folk who wish to compete with the very loud and powerful voices of all the MSM.

  33. c u n d gulag  •  Jan 24, 2010 @8:46 pm

    “… it can no longer squelch the rights of common folk who wish to compete with the very loud and powerful voices of all the MSM.”
    Peg,
    WHAT?!?!
    Read what you just wrote and explain the logic of it for me. I’m at a loss to understand how the SCOTUS decision helps us ‘common folk’ to compete with the loud and powerful voices of all the MSM.
    The MSM, individually, ARE corporations. What the SCOTUS just did was give every corporation a mega-phone while we ‘common folk’ are left to cup our hands and try to yell as loud as we can.
    This decision allows corporations, and not just American ones, but FOREIGN ones, to spend all that they want to influence OUR elections.
    If you think this is a good thing, congratulations, that makes at least 6 people who think it does. You and the 5 conservative judges on the Supreme Court. I’m sure that there are a lot of others out there. Like the ones who run, or benefit from the profits, of the corporations. The thinking members of us ‘common folk, uhm, not so much…
    ‘Nuff said. Good night, all.

  34. maha  •  Jan 24, 2010 @8:56 pm

    The “real issue” is whether people’s first amendment rights to free speech are being compromised. Five of the justices agreed that they were compromised by this law.

    The legal issue of the case had to do with the First Amendment rights of corporations. The decision extends First Amendment rights to corporations as legal “persons.” The First Amendment rights of human being citizens was not the legal issue decided. May I emphasize that this is not something you get to disagree with; you have a right to your own opinion but not your own facts, and this is a fact.

    Now, you can argue that the meta-issue is that the law restricted the free speech of individuals who have access to the money and resources of a corporation. But the government does place some restrictions on the means of communication when those means cause public disruption. You can’t override a broadband channel licensed to someone else, for example, or violate local public nuisance laws in the name of exercising your free speech rights. And the individuals with access to corporate resources still have access to the same means of communication that the rest of us have. Especially in the age of the internet, anybody with something to say can say it.

    BTW, this is a joke, right?

    it can no longer squelch the rights of common folk who wish to compete with the very loud and powerful voices of all the MSM.

    Common folk? Are you kidding? If corporate cash gets to shout the rest of us down, “common folk” might as well be gagged. Lady, you need to get out more.

    I don’t think the First Amendment needs amending; I think we need to restore sanity. The meta-issue is, to me, that the Supreme Court has stripped the power of We, the People, to decide through our representatives that corporate cash has a corrupting influence on elections, which it clearly does. The result of this case likely will be to accelerate the corrosive influences of special interests that I describe in this post.

  35. Charles  •  Jan 24, 2010 @9:23 pm

    Peg,

    To add to what maha said, let me ask if you have any evidence that, since McCain-Feingold, the wealthy and the corporations have been suffering under the yoke of being without representation or people to speak for them?

  36. freD  •  Jan 24, 2010 @9:33 pm

    it can no longer squelch the rights of common folk who wish to compete with the very loud and powerful voices of all the MSM

    WTF?

  37. freD  •  Jan 24, 2010 @10:19 pm

    My sister and her family are “staunch conservatives”.

    The real reasons: 1. They are very active and popular in their evangelical mega-church with most of their friends being there. 2. Brother in law has a great career mostly due to the fact that his boss is married to my sisters lifelong best friend. Since Jesus has “blessed them with the good life”, including no unusual life traumas and attractive healthy kids, I’ve witnessed their character (that kind which is exercised by difficult adversity) atrophy, to where the traumas other people have to deal with are “lessons from God” or some shit. Interesting how emotional aptitudes, skills and abilities are just like muscles, that nature plus nurture thing but I digress…

    After she brought it up, I recently asked sis why exactly are they such “staunch conservatives”. I was curious about her viewpoint. The answer: “Because Christianity is under attack!”

    Both she and her husband are college educated. Not long ago I witnessed the mobbing of an atheist objectivist who was a regular commenter on a blog owned by an agnostic objectivist, by several other regular conservatives, because they had collectivistly deemed him a “lefty”. Apparently in their world, atheist = lefty. Pacifism (such as initiation of force which Ayn Rand spoke of) also = lefty. These little stories might explain why a fair percentage of conservative’s “believe what they believe”.

    As for liberals, I’d say many of them are conservatives who’ve been mugged by reality, such as the “prominent right wing blogger” (if he’s being honest about his conversion) which Maha spoke of.

  38. maha  •  Jan 25, 2010 @12:21 pm

    C u n d gulag,

    The MSM, individually, ARE corporations. What the SCOTUS just did was give every corporation a mega-phone while we ‘common folk’ are left to cup our hands and try to yell as loud as we can.

    That’s about as clearly as it can be said. I notice Peg has disappeared; do you think we introduced a little glimmer of reality to her? I’m doubtful, but I guess anything is possible.

  39. Peg  •  Jan 25, 2010 @1:09 pm

    You’re correct here, Maha. No “glimmers of reality” over here.

    I’ll go for broke and share this with you and your readers for another perspective:

    http://pajamasmedia.com/blog/protecting-the-marketplace-of-ideas/?print=1#comments_controls

    Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less. The fact that state laws affect corporate status cannot be a basis for regulating them, any more than it could be a basis for deciding that married couples, partnerships, or membership organizations are not allowed to speak. Nor can it matter that any group’s views may not “correlate” with the views of the public. The First Amendment exists to protect dissent. No one ever wishes to limit speech with which they agree.
    ********
    I myself am also a realist. It seems difficult to have a congenial conversation with you, Maha. And, as this is your blog and you set the tone and the rules (as all people should do, IMHO) – I really do not want to bother you and the rest.

    Don’t want to insult anyone – and, at the same time, I do not wish to be insulted myself. So – if I “disappear” – you’ll know why.

  40. Swami  •  Jan 25, 2010 @1:54 pm

    Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less.

    I’m lost on this one.. My assumption is that the corporation will speak with a unified voice, so how does that unification occur without infringing on the rights of the individuals that compose the corporation…The probability of all individuals within a corporation being in agreement and of the same voice is close to nil …and somebody is going to get their right to free speech squashed.

  41. Peg  •  Jan 25, 2010 @2:42 pm

    Swami, what if you belong to Planned Parenthood, and you are unhappy with what the press is saying right before an election. Wouldn’t you like to be able to band together with like-minded people and get the word out about your beliefs? Up until the most recent ruling, you could not. Same for the ACLU, Sierra Club, etc. Is that really want you want?

    It is hard to see how allowing more speech is squashing people’s right to speech.

  42. Swami  •  Jan 25, 2010 @2:53 pm

    Come on Peg.. You’ve got to toughen up your hide. Take a cue from old Swami..This is the internet and in order to survive you’ve got to be impervious to insult. We’re all a bunch of floundering souls trying the best we can to make sense in a world devoid of sense. If you’d like you can adopt my watchword(shield) to help you through the pain of not being understood, it’s taken from John the Baptist..”Yo no soy nada”. It serves me well as ballast in knowing that neither I nor anybody has the answer.. You take what you will and leave the rest, but enjoy the experience of interaction and the appreciation of looking into other minds. My experience is that there are many fine minds expressing themselves here at the mahablog.

    So stick around..We like you!

  43. maha  •  Jan 25, 2010 @2:56 pm

    Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less.

    No, that is not the definition of a corporation according to law and business. It’s a new definition made up by right-wing bloggers to dishonestly win an argument.

    Here is the real definition, from a disinterested source (boldface added):

    A corporation is defined as a legal entity or structure created under the authority of the laws of a state, consisting of a person or group of persons who become shareholders. The entity’s existence is considered separate and distinct from that of its members. Like a real person, a corporation can enter into contracts, sue and be sued, pay taxes separately from its owners, and do the other things necessary to conduct business. Since a corporation is an entity in its own right, it is liable for its own debts and obligations. As a result, providing that corporate formalities are followed, the corporation’s owners (the shareholders) enjoy limited liability, and are legally shielded from the corporation’s liabilities and debts.

    The existence of a corporation is not dependent upon who the owners or investors are at any one time. Once formed, a corporation continues to exist as a separate entity, even when shareholders die or sell their shares. A corporation continues to exist until the shareholders decide to dissolve it or merge it with another business.

    Corporations are subject to the laws of the state of incorporation, and to the laws of any other state in which the corporation conducts business. Corporations may thus be subject to the laws of more than one state. All states have corporation statutes that set forth the ground rules as to how corporations are formed and maintained.

    Again, the court’s decision is not about the free speech rights of individuals who are members of a corporation, but the free speech rights of corporations themselves as legal “persons.” Your analogy of a married couple doesn’t fit, unless you think a “marriage” is an entity separate from a husband and wife that still exists if one or both of them dies. A “marriage” has no free speech rights. Citizens who are married have free speech rights.

    Your statement “The fact that state laws affect corporate status cannot be a basis for regulating them” doesn’t even rise to the level of sophistry. Corporations are created by state governments. Look at the title of this blog post; “We’re All State-Created Entities?” That comes out of the argument at Volokh Conspiracy that you so admire but don’t seem to have read. The Volokh blogger is arguing in favor of the SCOTUS decision from the other direction. You are saying that corporations are made up of individuals, therefore to restrict the speech of a corporation is to restrict the speech of its members. The Volokh blogger is not making that argument, but is saying that all persons, you and me, are state-created entities because law defines “person.” Therefore, the Volokh blogger says, a state-created entity like a corporation gets to be a “person,” too. Do try to get your nonsense straight, at least.

  44. freD  •  Jan 25, 2010 @3:05 pm

    Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less.

    At best, corporations are a sort of republic, with selected officials speaking for the rest of group. At worst, they’re dictatorships, with a handful of power players forcing conditions on the rest of the group (layoffs, offshoring careers…).

    In either case, the individuals speaking for the group far less reflect the wishes of the group, far more reflect their own personal wishes (I have yet to see a CEO offshore their own job).

    What if a single small group becomes so powerful it silences all other voices? The only option the rest of the voices has is collective action, which I believe is forbidden by objectivist, libertarian, and modern Communist Chinese philosophy.

  45. maha  •  Jan 25, 2010 @3:11 pm

    Peg, you have no idea what you are talking about.

    First, my understanding is that Planned Parenthood is not a corporation but a 501(c)(3), and if that is the case they are prohibited from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” However, they are allowed to engage in “voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner.” So Planned Parenthood is free to publicly discusses issues as long as they aren’t spending money to support one candidate over another. So if media are saying something they don’t like, the organization is free to speak back.

    That is pretty close to the McCain-Feingold restriction that was struck down. McCain-Feingold banned

    broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.

    The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

    My understanding is that the corporations could buy all the air time they wanted to promote their perspectives on issues, as long as this was done in a non-partisan manner. The case in hand ruled on the broadcast of a fictionalized propaganda screed against Hillary Clinton, which sure as hell wasn’t about issues. It was a bare-assed attempt to use corporate money to sway voters.

    Again, McCain Feingold did not stop anyone, including corporations, from “getting the word out” about their beliefs.

  46. maha  •  Jan 25, 2010 @3:15 pm

    My assumption is that the corporation will speak with a unified voice, so how does that unification occur without infringing on the rights of the individuals

    I had the same thought. If we go by Peg’s theory that a corporation represents the unified voice of its members, and corporation X is using corporate funds to campaign for candidate Jones, aren’t the shareholders who don’t like candidate Jones being fraudulently misrepresented?

  47. Swami  •  Jan 25, 2010 @3:18 pm

    Peg, I think I know what you are try to say, but the examples you cite are groups that are formed for the specific purpose of certain issues. What I am saying is how does what you are saying apply to corporations where their purpose for being isn’t based on an established issue.. For example..Bank of America, Verizon, or any of the major players who have bundles of money to throw into the election process yet are composed of thousands of stockholders and members who don’t share the same political goals or support the same issues.

  48. Charles  •  Jan 25, 2010 @3:22 pm

    What about a church? If corporations are allowed to participate in electioneering, why not churches? Peg’s arguments seem to apply equally — I didn’t see anything in them that would distinguish between churches and corporations.

  49. maha  •  Jan 25, 2010 @4:06 pm

    What about a church? If corporations are allowed to participate in electioneering, why not churches? Peg’s arguments seem to apply equally — I didn’t see anything in them that would distinguish between churches and corporations.

    Non-profits, including churches, and corporations have, or had, similar restrictions on campaign activity but for somewhat different reasons.

    The government (wisely, I say) doesn’t try to define “religion” except in very vague terms. Basically, if you have a doctrine and religious-looking activities like worship services, your organization is a religion if you say it is.

    So, you get non-profit status for the religious part of your activities, like the money you collect to pay the pastor, take care of the temple, patch up the zafus, buy a new Ganesha statue for the altar, etc. However, if you also run a for-profit enterprise to make money, like a retail store or publishing company, the for-profit part has to be set up separately from the non-profit part for tax purposes. And if a non-profit religious organization begins to spend its money to campaign for candidates, it is supposed to lose the tax-except status. However, like any nonprofit the church can speak out on issues in a nonpartisan manner.

    This complies with the establishment and free exercise clauses of the First Amendment — government keeps its hands off religion, religion keeps its hands off government. It also discourages groups that are really interested in making money or electing candidates to call themselves religions. Otherwise, the government would have to start making judgments about what is or is not a religion, and that could get hairy.

    Entities organized to do charitable or educational work also are given tax-exempt status to help them, because they are doing a public service, but they also get the same restrictions because otherwise every business in America would suddenly decide it is charitable or educational.

    The corporations, the temptation of course is quid pro quo — when corporate money can make or break an election, corporations pretty much own the candidates.

  50. Charles  •  Jan 25, 2010 @5:09 pm

    maha,

    Yes, I agree. But since, in the eyes of those like Peg, the First Amendment trumps all, surely in their eyes the first amendment rights of those in churches being restrained must surely trump the Establishment clause, by exactly the “logic” Peg has given us.

  51. Peg  •  Jan 25, 2010 @5:45 pm

    Maha – your understanding of Planned Parenthood is incorrect. It is a non-profit – but – it is a non-profit CORPORATION. According to the law just struck down, it was as muzzled as Exxon or Halliburton or any of the other corporations you and yours love to hate.

    I assure you I am not a constitutional scholar. Took one class in grad school, so there are loads of people vastly more knowledgeable on this topic than I. I am, however, able to read. I try to read from many sources – and I try very hard to read from original sources, so I can understand without the filters of bias from others.

    Here is some questioning that went on at the court with Stewart, who was defending the law: (and my apologies in advance that I don’t know how to put the damn tags in with this)

    One of them, Justice Samuel A. Alito Jr., said that if the government has the power to ban broadcast ads, it could also ban books.

    “That’s pretty incredible,” Alito said.

    Deputy Solicitor General Malcolm Stewart, who defended the law on behalf of the Federal Election Commission, said the restrictions could not ban the publication of a book, but could limit a company’s use of its money to put one out.

    “I’m saying that Congress could prohibit the use of corporate treasury funds” to pay for a campaign book, he said.

    The book-ban metaphor hung over the argument. Kennedy noted that books now can be read on Amazon’s Kindle, an electronic device. If the Constitution in theory allows the government to forbid corporate-funded campaign books, he said, it also could restrict books that may be received from a wireless transmission.

    Chief Justice John G. Roberts Jr. expressed surprise at that. “If it has one name, one use of a candidate’s name, it could be covered?” Roberts asked.

    “That’s correct,” Stewart replied.

    “It’s a 500-page book, and at the end it says, so vote for X. The government could ban that?” Roberts asked.

    Yes, Stewart said again. The Constitution would allow a law that forbids the use of corporate funds to pay for such a book, he said.

    ****

    Like I said; I haven’t read the dozens of opinions from the various justices, nor have I read all the questioning, etc. But, my GUESS is that part of what caused the justices that did rule against McCain-Feingold to do so is because they believe the banning of books to be against the bedrock of the First Amendment.

    All of you who think I am such a moron – do you really want a law that says we can’t print books about the candidates prior to an election? You refer to the documentary that Citizens United made as a “screed”, Maha – and – you surely are entitled to your opinion.

    But – as I bet many of you would say about all kinds of other movies and books: if you don’t like ‘em – don’t watch ‘em and don’t read ‘em. What you should not say is: “BAN the ones that I don’t like!”

    The thing about speech is that as was said above, the speech that most of us would agree is “fine” is easy to approve. It’s exactly the speech that some find offensive and disgusting – “screeds” as you say, Maha, that needs the protecting.

    I may look upon some of Michael Moore’s films as “screeds” – but do you want my opinion of what they are blocking them from being shown? If you are in support of the law that was just struck down, that is exactly what you are in favor of.

    The justices questioning Stewart, and he had to answer truthfully. This law demands censorship, straight out.

  52. maha  •  Jan 25, 2010 @7:34 pm

    It is a non-profit – but – it is a non-profit CORPORATION.

    I really wish you would actually read my comments before you reply to them. If you did read the comment, then read it again, more slowly this time. All the way through.

    As I said, I’m pretty sure Planned Parenthood is a 501(c)(3), and you can call that a “non-profit corporation” if you want to. The Citizens United organization is a 501(c)(4), which means it is also non-profit but had fewer restrictions regarding lobbying and election campaigning than a 501(c)(3). As I said in the comment you apparently didn’t read, the basic rules for profits and non-profits regarding political activity were similar. McCain-Feingold did not prohibit corporations from using funds to speak out on issues. The prohibition was on using funds to campaign for candidates. So your example of Planned Parenthood was and remains meaningless. Even with the more restrictive 501(c)(3) restrictions, Planned Parenthood, before and after Citizens United, was and is perfectly free to use its funds for public education and to speak out on issues and to respond to misinformation on the issues in media, as is any for-profit corporation before and after Citizens United. They were not “muzzled.” The prohibition was in meddling in election campaigns, not for speaking out on issues.

    I may look upon some of Michael Moore’s films as “screeds” – but do you want my opinion of what they are blocking them from being shown? If you are in support of the law that was just struck down, that is exactly what you are in favor of.

    Let’s pretend some conservative candidate — let’s call her Sarah Palin — is running for president in 2012, and two days before the election NBC runs a Michael Moore documentary that is nothing but a dishonest smear job of Sarah Palin to make her look bad — that she used to be a call girl named Mooseburger to Go, that she secretly had six abortions and used the fetuses in Satanic rituals, that sort of thing. I happen to think that would be wrong, not just because it is dishonest but because it would be a use of corporate money to sway an election. And McCain-Feingold prohibited such things. However, thanks to Citizens United, now NBC and Michael Moore can do just that! Woo-hoo! You want dirty and utterly corrupt elections, girl, and now you got ‘em!

    However, McCain Feingold would not have prohibited NBC from running the documentary three months before the election, or the day after. Palin might have sued NBC and Moore out of their socks, but that’s another issue. The prohibition was doing something like that in a way that might have pulled an election one way or another.

    The provision the Citizens United ruling struck down was a ban of the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. Outside of that time frame the provision didn’t apply.

    I assure you I am not a constitutional scholar.

    Yes, we noticed.

    According to the law just struck down, it was as muzzled as Exxon or Halliburton or any of the other corporations you and yours love to hate.

    Thanks for showing your true colors — you know nothing but knee-jerk rightie propaganda, and you are not the least bit open to anything we say, because you’re so brainwashed you think you already know what we think. But you don’t.

    I don’t have any more time to waste on you, since you are obviously (a) have a mind closed tighter than a bank vault, (b) not reading and responding to the arguments people are taking the time to present to you, and (c) dim. Good bye.

  53. c u n d gulag  •  Jan 25, 2010 @8:29 pm

    Peg,
    Stick around. This is one of the longest comment thread I’ve ever seen on this site. And I believe it’s because of you.
    The only reason we’re spending time on this, is because we believe you’re bright, and are just mistaken in your take on the SCOTUS position. We could have ‘flamed’ you long ago, but we didn’t.
    You wrote, “One of them, Justice Samuel A. Alito Jr., said that if the government has the power to ban broadcast ads, it could also ban books.

    “That’s pretty incredible,” Alito said.

    Deputy Solicitor General Malcolm Stewart, who defended the law on behalf of the Federal Election Commission, said the restrictions could not ban the publication of a book, but could limit a company’s use of its money to put one out.”
    First, Scalito asked, and then answered his own quesion, ala Woody Allen in “Banana’s,” only Woody is funnier, and probably smarter, too.
    Second, JESUS H. CHRIST ON A BICYCLE, every publishing company decides what money to spend on what it puts out every day. Many times a day!
    Books, btw, are the least of the worries. Most Americans don’t read them today, unless they involve a serial killer, or on books by conservatives, whose purchasing numbers are grossly inflated by bulk-buys by conservative organizations – hence, not really ‘bought’ by the “common people.”
    What we’re all trying to point out to you is that this decision is NOT something the Founding Fathers would have approved of.
    It allows foreign coporations to stick their noses in our elections. It allows corporations the ability to scream in the canyons of the MSM, while we ‘common people” are left to whispter, or only allowed to voice our opinion as long as it agrees with our corporate overlords. And that is what they will be – OUR OVERLORDS! Hell, they are already. This SCOTUS decision just set it in concrete.
    Let me ask you, if you were a politician, why would you listen to the poor whores and johns, when the pimp’s will pay you whatever you ask?
    The pimps will go free. They’ll pay for that right. And we, the ‘common people,’ will be the voiceless.
    I cannot explain to you, to anyone, just how bad, how corrosive, how, yes, EVIL, this decision really is.
    For the tea-bagger’s who may be lurking, you’re big on America being a place where you “Live Free, or die!” Well, we can now change that to read, “America: You get what you pay for!”
    If, that is, you can afford it. Sadly, I can’t…
    Neither, do I think, can you!

  54. maha  •  Jan 25, 2010 @8:38 pm

    Too late. She’s in the sudden death filter now.

  55. c u n d gulag  •  Jan 25, 2010 @9:30 pm

    Ok, well…
    At least she can’t say we were nasty, or that we didn’t try.
    Having a conversation with a marionette is hard. I guess it just goes to show that it’s hard to listen and think when all of your strings are still being pulled.
    From whither did she wander here? By that, I mean, how did she find her way here to this site, I wonder?

  56. datechguy  •  Jan 25, 2010 @9:58 pm

    Well you know us evil conservatives, we turn up in the most unlikely places to spread our cause to destroy the world, strangle puppies and generally wreak havoc.

    Banning Peg, that’s Charles Johnson territory, but hey your blog, your rules.

  57. freD  •  Jan 25, 2010 @10:16 pm

    So endeth another edition of “Wingnut Spotlight”.

    Just for fun I googled. Most of Peg’s “logic” comes verbatim from other websites, or are emotional blanket judgments about “our kind”. All of Maha and the other commenters stuff (unless duly noted), are original thoughts. My guess is she’s a newbie to political blogs, although I’m open to ‘permanent newbie’ if you know what I mean.

  58. erinyes  •  Jan 25, 2010 @10:22 pm

    ‘looks like peg fell into the piranha pool………

  59. maha  •  Jan 26, 2010 @8:53 am

    Banning Peg, that’s Charles Johnson territory, but hey your blog, your rules.

    They are my rules. And here are the rules.

    One of the most unforgivable things a commenter can do, IMO, is to comment without actually reading the posts or the other comments he/she is responding to. It was obvious that’s what Peg was doing. For the most part she wasn’t responding to our arguments here, but rather just cutting and pasting stuff from elsewhere . So she gets the same courtesy and respect she gave.

  60. Ohio Mom  •  Jan 26, 2010 @8:00 pm

    datechguy, I don’t know what Charles Johnson does (is that Little Green Thingamajeebies, if so, I’ve only been there once), but one of the reasons I like this place is that Maha really does try to engage with people who on other sites would be considered trolls, and either made fun of or ignored. I think she gave Peg quite a bit of time and answered her with care and thought.

    At the same time, Maha does have limits and is very straightforward about them. People are given warning (as in, Please Read More Carefully — I see variations on that one a lot). If there was a Kofaux or other award for Most Ethical Treatment of Provocative and Troll Commentators, well, I’d think she’d win hands down.

1 Trackback



    About this blog



    About Maha
    Comment Policy

    Vintage Mahablog
    Email Me


















    Support This Site







    eXTReMe Tracker













      Technorati Profile